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AGREEMENT AND PLAN OF MERGER
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Among
NEW MOUNTAINTOP CORPORATION,
TRUST LICENSING, INC.
and
TRUST LICENSING, LLC
August 23, 2004
TABLE OF CONTENTS
SECTION 1.01 The Merger
SECTION 1.02 The Closing
SECTION 1.03 Effective Time
SECTION 1.04 Effects of the Merger
SECTION 1.05 Articles of Incorporation and Bylaws
SECTION 1.06 Directors
SECTION 1.07 Officers
SECTION 1.08 Redemption of Shares
SECTION 1.09 Name Change; Stockholder Action
SECTION 2.01 Effect on Capitalization
SECTION 3.01 Organization
SECTION 3.02 Subsidiaries
SECTION 3.03 Capitalization
SECTION 3.04 Authority
SECTION 3.05 Consents and Approvals; No Violations
SECTION 3.06 Financial Statements
SECTION 3.07 Absence of Certain Changes or Events
SECTION 3.08 No Undisclosed Liabilities
SECTION 3.09 Benefit Plans
SECTION 3.10 Other Compensation Arrangements
SECTION 3.11 Litigation
SECTION 3.12 Permits; Compliance with Law
SECTION 3.13 Tax Matters
SECTION 3.14 Intellectual Property
SECTION 3.15 INTETIONALLY OMITTED
SECTION 3.16 Labor Matters
SECTION 3.17 Title to Property
SECTION 3.18 Environmental Matters
SECTION 3.19 Interested Party Transactions
SECTION 3.20 Absence of Certain Payments
SECTION 3.21 Insurance
SECTION 3.22 Full Disclosure
SECTION 3.23 Contracts
SECTION 3.24 Real Property
SECTION 3.25 Brokers
SECTION 4.01 Organization
SECTION 4.02 Subsidiaries
SECTION 4.03 Capitalization
SECTION 4.04 Authorization
SECTION 4.05 Consents and Approvals; No Violations
SECTION 4.06 Financial Statements / SEC Filings
SECTION 4.07 Absence of Certain Changes or Events
SECTION 4.08 No Undisclosed Liabilities
SECTION 4.09 Benefit Plans
SECTION 4.10 Other Compensation Arrangements
SECTION 4.11 Litigation
SECTION 4.12 Permits; Compliance with Law
SECTION 4.13 Tax Matters
SECTION 4.14 Intellectual Property
SECTION 4.15 INTENTIONALLY OMITTED
SECTION 4.16 Labor Matters
SECTION 4.17 Title to Property
SECTION 4.18 Environmental Matters
SECTION 4.19 Interested Party Transactions
SECTION 4.20 Absence of Certain Payments
SECTION 4.21 Insurance
SECTION 4.22 Full Disclosure
SECTION 4.23 Contracts
SECTION 4.24 Real Property
SECTION 4.25 Brokers
SECTION 5.01 Payment of Certain Liabilities/Cash at Closing
SECTION 6.01 Fees and Expenses
SECTION 6.02 Indemnification; Insurance
SECTION 7.01 Nonsurvival of Representations and Warranties
SECTION 7.02 Notices
SECTION 7.03 Interpretation
SECTION 7.04 Counterparts
SECTION 7.05 Entire Agreement; Third Party Beneficiaries
SECTION 7.06 Governing Law
SECTION 7.07 Publicity
SECTION 7.08 Assignment
SECTION 7.09 Enforcement
SECTION 7.10 No Remedy in Certain Circumstances
EXHIBIT A ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Employment Agreement
EXHIBIT B ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Employment Agreement
EXHIBIT C ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Employment Agreement
EXHIBIT D ▇▇▇▇ ▇▇▇▇▇▇ Consulting Agreement
17
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made and entered
into as of August 23, 2004, by and among New Mountaintop Corporation, a Delaware
corporation ("Parent"), Trust Licensing, Inc., a Florida corporation and a
wholly owned subsidiary of Parent ("Acquisition Sub") and Trust Licensing, LLC,
a Florida limited liability company ("Company").
WHEREAS the respective Boards of Directors of Parent and Acquisition
Sub and the Manager of Company have approved the acquisition of the Company by
Parent on the terms and subject to the conditions set forth in this Agreement;
and
WHEREAS the respective Boards of Directors of Parent and Acquisition
Sub and the Manager of Company have each approved, and the Board of Directors of
Parent in its capacity as the sole shareholder of Acquisition Sub has approved,
the merger of Company into Acquisition Sub in a reverse triangular merger
pursuant to Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as
amended (the "Code") (the "Merger"), upon the terms and subject to the
conditions set forth in this Agreement, whereby the membership interests in the
Company (the "Company Membership Interest") will be converted into the right to
receive 270,072,000 shares of Parent's common stock, par value $.0001 per share,
("Parent Common Stock"), which shall constitute approximately ninety-three
percent (93%) of the issued and outstanding Parent Common Stock immediately
after the Merger, and whereby the stockholders of the Parent (as determined
immediately preceding the Merger) shall retain the remaining seven percent (7%)
of the Parent Common Stock; and
WHEREAS Parent, Acquisition Sub and Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Acquisition Sub and Company hereby agree as follows:
ARTICLE I
The Merger
SECTION 1. 01 The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the Florida Business
Corporation Act (the "FBCA") and the Florida Limited Liability Company Act (the
"FLLCA"), Company shall be merged into the Acquisition Sub at the Effective Time
(as defined in Section 1.03). Following the Effective Time, the separate
existence of Company shall cease and Acquisition Sub shall continue as a
surviving corporation ("Surviving Corporation") and shall succeed to and assume
all the rights and obligations of Company in accordance with the FBCA and the
FLLCA.
SECTION 1. 02 The Closing. The closing of the Merger will take place at
10:00 a.m. (local time) on August 20, 2004 ("Closing Date"), at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A., 1555 Palm Beach ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇, unless another date, time or place is agreed to in writing by
the parties hereto.
SECTION 1. 03 Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the Closing Date, the parties
shall file the Articles of Merger or other appropriate documents (in any such
case, the "Articles of Merger") executed in accordance with the relevant
provisions of the FBCA and the FLLCA and shall make all other filings or
recordings required under the FBCA and the FLLCA. The Merger shall become
effective at such time as the Articles of Merger are duly filed with the Florida
Secretary of State, or at such other time as the Parent and the Company shall
agree should be specified in the Articles of Merger (the time the Merger becomes
effective being hereinafter referred to as the "Effective Time").
SECTION 1. 04 Effects of the Merger. The Merger shall have the effects
set forth in the applicable provisions of the FBCA and the FLLCA.
SECTION 1. 05 Articles of Incorporation and Bylaws.
( a) The Articles of Incorporation of the Acquisition Sub as
in effect immediately prior to the Effective Time shall be the Articles of
Incorporation of the Surviving Corporation until thereafter changed or amended
as provided therein or by applicable law.
( b) The bylaws of the Acquisition Sub as in effect
immediately prior to the Effective Time shall be the bylaws of the Surviving
Corporation until thereafter changed or amended as provided therein or by
applicable law.
SECTION 1. 06 Directors. Following the closing, the directors of Parent
shall be ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ until such time as Parent complies
with Rule 14f-1 under the Securities Exchange Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇").
Thereafter, the resignation of ▇▇▇▇ ▇▇▇▇▇▇ as a director shall be effective and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ shall be the sole director of the Parent and the Surviving
Corporation until the earlier of his resignation or removal or until his
respective successor is duly elected and qualified, as the case may be
SECTION 1. 07 Officers. Following the closing, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall be the officers of the Parent and
the Surviving Corporation until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified, as the case
may be.
SECTION 1.08. Redemption of Shares. In conjunction with the closing,
Company shall have at least $135,000 in cash, which shall be paid to ▇▇▇▇ ▇▇▇▇▇▇
at the closing by the Parent in consideration of the redemption of 2,000,000
shares of Parent Common Stock (post split) from ▇▇▇▇ ▇▇▇▇▇▇.
SECTION 1.09 Name Change; Stockholder Action. As soon as practicable
following the closing, Parent shall file an Information Statement on Schedule
14C with the Securities and Exchange Commission with respect to (i) a one-for-10
reverse stock split effective as of the day prior to the Closing Date, (ii) the
amendment of Parent's Certificate of Incorporation to change its name to "Trust
Licensing, Inc.," and (iii) the change in the majority of Parent's Board of
Directors.
ARTICLE II
Effect of the Merger on the Capitalization of
the Constituent Entities; Exchange of Certificates
SECTION 2. 01 Effect on Capitalization. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder of the
Company Membership Interest or the holder of shares of capital stock of
Acquisition Sub:
(a) Conversion of Company Membership Interest. Subject to this
Section 2.01, the Company Membership Interest shall be converted into the right
to receive from the Surviving Corporation 270,072,000 shares of Parent Common
Stock ("Merger Consideration") which shall constitute approximately ninety-three
percent (93%) of the issued and outstanding Parent Common Stock immediately
after the closing (giving effect to the reverse split). As of the Effective
Time, the Company Membership Interest shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and the holder
of the certificate representing the Company Membership Interest shall cease to
have any rights with respect thereto, except the right to receive the Merger
Consideration.
(b) No Further Ownership Rights in Company Common Stock. All
shares of Parent Common Stock exchanged upon the surrender of the Company
Membership Interest in accordance with the terms of this Article II shall be
deemed to have been paid in full satisfaction of all rights pertaining to the
Company Membership Interest.
ARTICLE III
Representations and Warranties of the Company
Company represents and warrants to Parent and Acquisition Sub that the
statements contained in this Article III are true, correct, and complete as of
the date of this Agreement and will be true and correct as of the Closing Date:
SECTION 3. 01 Organization. Company is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Florida and has all requisite corporate power and authority to carry on its
business as now being conducted, except where the failure to be so organized,
existing and in good standing or to have such power and authority could not be
reasonably expected to (i) prevent or materially delay the consummation of the
Merger, or (ii) have a material adverse effect on Company. Company is duly
qualified or licensed to do business and in good standing in each jurisdiction
in which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification or licensing necessary.
SECTION 3. 02 Subsidiaries. Company has no subsidiaries. Company does
not own, directly or indirectly, any capital stock or other ownership interest
in any corporation, partnership, joint venture or other entity.
SECTION 3. 03 Capitalization. As of the date of this Agreement, J
▇▇▇▇▇▇ ▇▇▇▇, TTEE, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ are the owners of 100% of the
issued and outstanding Company Membership Interests. There are no other
membership interests issued and outstanding. The Company Membership Interests
are duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights. There are no bonds, debentures, notes or other
indebtedness of Company having the right to vote (or convert into, or exchange
for, securities having the right to vote) on any matters on which members of
Company may vote. There are no securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind to which
either Company is a party or by which either is bound obligating Company to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
membership interests in Company or obligating Company to issue, grant, extend or
enter into any such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking. There are no outstanding contractual
obligations of Company to repurchase, redeem or otherwise acquire any membership
interests of the Company.
SECTION 3. 04 Authority.
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( a) Company has the requisite power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation by the Company of the Merger and of the other transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Company and no other proceedings on the part of Company are
necessary to authorize this Agreement or to consummate the transactions so
contemplated, subject to the filing of the Articles of Merger. This Agreement
has been duly executed and delivered by Company and, assuming this Agreement
constitutes a valid and binding obligation of Parent and Acquisition Sub,
constitutes a valid and binding obligation of Company enforceable against
Company in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally.
( b) The sole Manager of Company on August 23, 2004, duly
adopted resolutions (i) approving this Agreement and the Merger, and (ii)
determining that the terms of the Merger are in the best interests of Company.
( c) The holders of the Company Membership Interests have
executed a written consent adopting resolutions approving this Agreement and the
Merger.
SECTION 3. 05 Consents and Approvals; No Violations. Except for
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of the FBCA and the FLLCA, neither the
execution, delivery or performance of this Agreement by Company nor the
consummation by Company of the transactions contemplated hereby will (i)
conflict with or result in any breach of any provision of the Articles of
Organization of Company, (ii) require any filing with, or permit, authorization,
consent or approval of, any federal, state or local government or any court,
tribunal, administrative agency or commission or other governmental or other
regulatory authority or agency, domestic, foreign or supranational (a
"Governmental Entity") (except where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings could not
reasonably be expected to have a material adverse effect on Company or prevent
or materially delay the consummation of the Merger), (iii) except as set forth
in Section 3.05 of the Disclosure Schedule, result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which Company is a party or by which Company or its
properties or assets may be bound; or (iv) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Company or any of its
properties or assets, except in the case of clauses (iii) or (iv) for
violations, breaches or defaults that could not reasonably be expected to have a
material adverse effect on Company or prevent or materially delay the
consummation of the Merger.
SECTION 3. 06 Financial Statements. The unaudited financial statements
of Company as of and for the period from inception through December 31, 2003and
as of and for the seven months ended July 31, 2004 (the "Balance Sheet Date")
set forth in Section 3.06 of the Disclosure Schedule have been prepared in
accordance with generally accepted accounting principles consistently applied
("GAAP") with respect thereto throughout the periods involved as explained in
the notes to such financial statements. The Company's financial statements
present fairly, in all material respects, as are their respective dates the
financial position of the Company. The Company 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 GAAP, and all assets reflected
therein presents fairly the assets of Company in accordance with GAAP.
SECTION 3. 07 Absence of Certain Changes or Events. Since the Balance
Sheet Date, Company has conducted its business only in the ordinary course
consistent with past practice, and there has not been any material adverse
change (as defined in Section 7.03) with respect to Company..
SECTION 3. 08 No Undisclosed Liabilities. Except as and to the extent
set forth in Section 3.08 of the Disclosure Schedule, as of the Balance Sheet
Date, to the best knowledge of Company, Company has no liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise, that
would be required by GAAP to be reflected on a balance sheet of Company
(including the notes thereto). Since the Balance Sheet Date, except as and to
the extent set forth in Section 3.08 of the Disclosure Schedule and except for
liabilities or obligations incurred in the ordinary course of business
consistent with past practice, Company has not incurred any liabilities of any
nature, whether or not accrued, contingent or otherwise, that could be
reasonably expected to have a material adverse effect on Company, or would be
required by GAAP to be reflected on a consolidated balance sheet of Company
(including the notes thereto).
SECTION 3. 09 Benefit Plans. Except as set forth in Section 3.09 of the
Disclosure Schedule, each "employee pension benefit plan" (as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), "employee welfare benefit plan" (as defined in Section 3(1) of
ERISA) and each other plan, arrangement or policy (written or oral) relating to
stock options, stock purchases, compensation, deferred compensation, bonuses,
severance, fringe benefits or other employee benefits, in each case maintained
or contributed to, or required to be maintained or contributed to, by Company
for the benefit of any present or former employee, officer or director (each of
the foregoing, a "Company Benefit Plan") has been administered in all material
respects in accordance with its terms. Company and all the Company Benefit Plans
are in compliance in all material respects with the applicable provisions of
ERISA, the Code, all other applicable laws and all applicable collective
bargaining agreements. Section 3.09 of the Disclosure Schedule sets forth a list
of all Company Benefit Plans.
SECTION 3. 10 Other Compensation Arrangements. Except as disclosed in
Section 3.10 of the Disclosure Schedule, and except as provided in this
Agreement, as of the date of this Agreement, Company is not a party to any oral
or written (i) consulting agreement that is not terminable on not more than 30
calendar days notice, or union or collective bargaining agreement, (ii)
agreement with any Manager or other key employee of Company, or (iii) agreement
or plan, including any stock option plan, stock appreciation right plan,
restricted stock plan or stock purchase plan.
SECTION 3.11 Litigation. There is no suit, claim, action, proceeding
pending or threatened against Company, nor is there any investigation against
Company threatened or pending before any Governmental Entity. Company is not
subject to any outstanding order, judgment, writ, injunction or decree.
SECTION 3.12 Permits; Compliance with Law. Company holds all permits,
licenses, variances, exemptions, orders and approvals of all governmental
entities necessary for the lawful conduct of its business (the "Company
Permits"), except for failures to hold such permits, licenses, variances,
exemptions, orders and approvals that could not reasonably be expected to have a
material adverse effect on Company. Company is in compliance with the terms of
the Company Permits, except where the failure so to comply could not reasonably
be expected to have a material adverse effect on the Company. As of the date of
this Agreement, no investigation, inquiry or review by any Governmental Entity
with respect to Company is pending or, to the best knowledge of Company,
threatened, nor has any Governmental Entity indicated an intention to conduct
any such investigation, inquiry or review.
SECTION 3.13 Tax Matters. Company has filed or shall file as of the
Closing Date all of its tax returns required to be filed since inception. All
such returns and reports are accurate and correct in all material respects.
Company has no 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 as of the Closing Date, and no deficiency
assessment or proposed adjustment of any such tax return is pending, proposed or
contemplated. To the knowledge of Company, 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. There are no outstanding agreements or waivers
extending the statutory period of limitation applicable to any tax return of
Company.
SECTION 3.14 Intellectual Property.
( a) Except to the extent that the inaccuracy of any of the
following (or the circumstances giving rise to such inaccuracy) could not
reasonably be expected to have a material adverse effect on Company:
( 1) Company owns, or is licensed or otherwise has the legally enforceable right
to use (in each case, clear of any liens or encumbrances of any kind), all
Intellectual Property (as hereinafter defined) used in or necessary for the
conduct of its business as currently conducted or as proposed to be conducted;
( 2) no claims are pending or, to the best knowledge of Company, threatened that
Company is infringing on or otherwise violating the rights of any person with
regard to any Intellectual Property used by, owned by and/or licensed to Company
and, to the best knowledge of Company, there are no valid grounds for any such
claims;
(3) to the best knowledge of Company, all patents,
registered trademarks, service
marks and copyrights held by Company are valid and subsisting.
( b) For purposes of this Agreement, "Intellectual Property"
means patents, patent applications and 12 patent applications which Company
proposes to file, trademarks (registered or unregistered), service marks, brand
names, certification marks, trade dress, assumed names, trade names and other
indications of origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification or renewal of any
such registration or application; inventions, discoveries and ideas, whether
patented, patentable or not in any jurisdiction, trade secrets and confidential
information and rights in any jurisdiction to limit the use or disclosure
thereof by any person, writings and other works of authorship, whether
copyrighted, copyrightable or not in any jurisdiction; registration or
applications for registration of copyrights in any jurisdiction, and any
renewals or extensions thereof, any similar intellectual property or proprietary
rights and computer programs and software (including source code, object code
and data); licenses, immunities, covenants not to ▇▇▇ and the like relating to
the foregoing; and any claims or causes of action arising out of or related to
any infringement or misappropriation of any of the foregoing. Nothing contained
herein obligates Parent or the Surviving Company to file any of 12 proposed
patent applications.
( c) Section 3.14(c) of the Disclosure Schedule identifies
each patent or registration which has been issued to Company with respect to any
of its Intellectual Property, and identifies each pending patent application or
application for registration which the Company has made with respect to any of
its Intellectual Property, and identifies each material license, agreement, or
other permission which the Company has granted to any third party with respect
to any of its Intellectual Property.
SECTION 3.15 INTENTIONALLY OMITTED.
SECTION 3.16 There are no controversies pending or, to the knowledge of
Company, threatened, between Company and any of its respective employees; (ii)
the Company is not a party to any collective bargaining agreement or other labor
union contract applicable to persons employed by the Company.
SECTION 3.17 Title to Property. Except as set forth in Section 3.17 of
the Disclosure Schedule, Company has good and defensible title to all of its
properties and assets, free and clear of all liens, charges and encumbrances,
except liens for taxes not yet due and payable and such liens or other
imperfections of title, if any, as do not materially detract from the value of
or interfere with the present use of the property affected thereby or which
could not reasonably be expected to have a material adverse effect.
SECTION 3.18 Environmental Matters. Company is not aware of nor has
ever received notice of any past or present violations of any environmental laws
or any event, condition, circumstance, activity, practice, incident, action or
plan which is reasonably likely to interfere with or prevent continued
compliance with or which would give rise to any common law or statutory
liability, or otherwise form the basis of any claim, action, suit or proceeding
against Company based on or resulting from the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, handling, emission,
discharge or release into the environment of any pollutant, contaminant, or
hazardous or toxic material or waste.
SECTION 3.19 Interested Party Transactions. Except as set forth in
Section 3.19 of the Disclosure Schedule, since the Balance Sheet Date, no event
has occurred that would be required to be reported as a Certain Relationship or
Related Transaction, pursuant to Item 404 of Regulation S-K promulgated by the
SEC.
SECTION 3.20 Absence of Certain Payments Neither Company, nor any of
their respective affiliates, officers, directors, employees or agent or other
people acting on behalf of any of them have (i) engaged in any activity
prohibited by the United States Foreign Corrupt Practices Act of 1977, or any
other similar law, regulation, decree, directive or order of any other country
and (ii) without limiting the generality of the preceding clause (i), used any
corporate or other funds for unlawful contributions, payments, gifts or
entertainment, or made any unlawful expenditures relating to political activity
to government officials or others. Neither Company, nor any of its respective
affiliates, directors, officers, employees or agents of other persons acting on
behalf of any of them, has accepted or received any unlawful contributions,
payments, gifts or expenditures.
SECTION 3.21 Insurance. Company maintains all insurance policies
reasonably required for its businesses and assets, in character and amount at
least equivalent to that carried by persons engaged in similar businesses and
subject to the same or similar perils or hazards.
SECTION 3.22 Full Disclosure. No statement contained in any certificate
or schedule furnished or to be furnished by Company to Parent and Acquisition
Sub in, or pursuant to the provisions of, this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any material fact necessary, in light of the circumstances under which it was
made, in order to make the statements herein or therein not misleading.
SECTION 3.23 Contracts. Except as set forth on Section 3.23 of the
Disclosure Schedule, Company is not a party to any agreement (or group of
related agreements) that: (a) provides for payments in excess of $ 25,000 per
annum; (b) concerns a partnership or joint venture; (c) guarantees any
indebtedness; (d) concerns non-competition; (e) relates to monies advanced or
loaned to any of its directors, officers or employees; or (f) a default or
termination would have a material adverse effect on the business, financial
condition, operations or results of operations of Company. Company has delivered
to the Parent or its counsel a correct and complete copy of each written
agreement listed in Section 3.23 of the Disclosure Schedule (as amended to date)
and a written summary setting forth the material terms and conditions of each
oral agreement referred to in Section 3.23 of the Disclosure Schedule. With
respect to each such agreement: (i) the agreement is valid and binding on
Company, and in full force and effect in all material respects; (ii) to
Company's knowledge, no party is in material breach or default, and, no event
has occurred which with notice or lapse of time would constitute a material
breach or default, or permit termination, modification, or acceleration, under
the agreement; and (iii) no party has provided Company with notice of
repudiation of any material provision of the agreement.
SECTION 3.24 Real Property. The Company does not own any real property.
Section 3.24 of the Disclosure Schedule lists and describes briefly all real
property leased or subleased to Company. With respect to each lease and sublease
listed in Section 3.24 of the Disclosure Schedule, except as otherwise stated
therein: (a) the lease or sublease is legal, valid, binding, enforceable, and in
full force and effect in all material respects in accordance with its terms; and
(b) no party to the lease or sublease is in material breach or material default,
and, to Company's knowledge, no event has occurred which, with notice or lapse
of time, would constitute a material breach or material default or permit
termination, modification, or acceleration.
SECTION 3.25 Brokers. Except for the arrangement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
described on Section 3.25 of the Disclosure Schedule (the fees and expenses of
which will be paid by Company at or prior to the Effective Time), Company has
not engaged any broker, investment banker, financial advisor or other person,
pursuant to which such party is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated by this Agreement.
ARTICLE IV
Representations and Warranties of Parent and Acquisition Sub
Each of Parent and Acquisition Sub represents and warrants to Company
that the statements contained in this Article IV are true, correct, and complete
as of the date of this Agreement and will be true and correct as of the Closing
Date:
SECTION 4. 01 Organization. Each of the Parent and the Acquisition Sub
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and Florida, respectively, and has all requisite
corporate power and authority to carry on its business as now being conducted or
to have such power and authority could not be reasonably expected to (i) prevent
or materially delay the consummation of the Merger, or (ii) have a material
adverse effect on the Parent or the Acquisition Sub. Each of the Parent and the
Acquisition Sub is in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such good standing necessary. To its knowledge, Parent has not conducted
any business after March 1993.
SECTION 4. 02 Subsidiaries. The only subsidiary of Parent is
Acquisition Sub. Acquisition Sub has no subsidiaries. All the outstanding shares
of capital stock of Acquisition Sub are owned by Parent, free and clear of all
liens, and are duly authorized, validly issued, fully paid and nonassessable.
Except for the capital stock of the Acquisition Sub owned by Parent, neither
Parent nor Acquisition Sub owns, directly or indirectly, any capital stock or
other ownership interest in any corporation, partnership, joint venture or other
entity
SECTION 4.03 Capitalization. The authorized capitalization of Parent
consists of 500,000,000 shares of common stock, $0.0001 par value, with one vote
per share; and 10,000,000 shares of preferred stock, $0.0001 par value, of which
223,280,000 shares of common stock are (or approximately 22,328,000 following
the planned one-for-10 reverse split) issued and outstanding, and no shares of
preferred stock are issued or outstanding. All issued and outstanding shares of
Parent are legally issued, fully paid, and non-assessable 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 Parent. Except as disclosed in Parent's SEC Documents (as defined in
Section 7.03) or this Agreement, as of the date of this Agreement and as of the
Closing Date, there are no outstanding or authorized options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require Parent or Acquisition Sub to
purchase, issue, sell, or otherwise cause to become outstanding any of their
capital stock, outstanding or authorized stock appreciation, phantom stock,
profit participation, or similar rights with respect to Parent or Acquisition
Sub, or voting trusts, proxies, or other agreements or understandings with
respect to the voting of the capital stock of Parent or Acquisition Sub. There
are no preemptive rights applicable with respect to Parent's Common Stock.
SECTION 4.04 Authorization. Each of Parent and Acquisition Sub has all
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby subject to compliance with Rule
14f-1 under the Exchange Act. The board of directors of each of Parent and
Acquisition Sub have approved the execution and delivery of this Agreement and
the transactions contemplated by this Agreement including the Merger in
accordance with Florida law and Acquisition Sub's articles of incorporation and
bylaws. Parent, as sole stockholder of Acquisition Sub, has approved the Merger,
and no other corporate proceedings on the part of Parent or Acquisition Sub are
necessary to authorize the execution, delivery, and performance, and the
resolutions approving such Merger are irrevocable. This Agreement has been duly
executed and delivered by each of Parent and Acquisition Sub and constitutes
their valid and binding obligations, enforceable against each of them in
accordance with its terms.
SECTION 4.05 Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under the
FBCA and the FLLCA, and except for the filings required to consummate the Merger
and filing of a Form D with the SEC, preliminary and definitive Schedule 14C,
and any required Form 8-K, neither the execution, delivery or performance of
this Agreement by Parent and Acquisition Sub nor the consummation by the Parent
and Acquisition Sub of the transactions contemplated hereby will: (i) conflict
with or result in any breach of any provision of the Articles of Incorporation
or bylaws of Parent or Acquisition Sub, (ii) require any filing with, or permit,
authorization, consent or approval of, any Governmental Entity (except where the
failure to obtain such permits, authorizations, consents or approvals or to make
such filings could not reasonably be expected to have a material adverse effect
on Parent or Acquisition Sub or prevent or materially delay the consummation of
the Merger), (iii) except as set forth in Section 4.05 of the Disclosure
Schedule, result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which the Parent or
Acquisition Sub is a party or by which the Parent or Acquisition Sub or their
respective properties or assets may be bound; or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Parent or
Acquisition Sub or any of their respective properties or assets, except in the
case of clauses (iii) or (iv) for violations, breaches or defaults that could
not reasonably be expected to have a material adverse effect on Parent or
Acquisition Sub or prevent or materially delay the consummation of the Merger.
SECTION 4.06 Financial Statements / SEC Filings.
(a) Included in the last Form 10-KSB filed by Parent with the
SEC are the audited balance sheet of Parent as of December 31, 2003, and the
related statements of operations, stockholders' equity (deficit), and cash flows
for the fiscal year ended December 31, 2003, including the notes thereto, and
the accompanying report of the company's independent certified public
accountant.
(b) The financial statements of Parent contained in the SEC
Documents including the Forms 10-QSB for the three months ended March 31, 2004
and June 30, 2004 (the "Most Recent Filing Date") have been prepared in
accordance with GAAP and in accordance with the published rules and regulations
of the SEC with respect thereto throughout the periods involved as explained in
the notes to such financial statements. The Parent financial statements present
fairly, in all material respects, as of their respective dates, the financial
position of Parent. Parent 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 GAAP, and all assets reflected therein
present fairly the assets of Parent in accordance with GAAP.
(c) Beginning with the Form 10-KSB for the year ended December
31, 2002, Parent has made all filings with the SEC that it has been required to
make under the Securities Act of 1933 and the Securities Exchange Act of 1934.
All documents required to be filed as exhibits to the SEC Documents have been so
filed, and all material contracts so filed as exhibits are in full force and
effect, except those which have expired in accordance with their terms. Since
the filing of the Form 10-KSB for the year ended December 31, 2002, each of
Parent's SEC Documents has complied in all material respects with the Exchange
Act in effect as of their respective dates. None of Parent's SEC Documents
including the Forms 10-KSB and Form 10-QSB for quarters ended in 2003 and 2004,
as of their respective dates, contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. To Parent's knowledge, the failure to file Forms 10-KSB and 10-QSB
for a number of years will not have a material adverse effect on Parent.
SECTION 4.07 Absence of Certain Changes or Events. Except as set forth
in Section 4.07of the Disclosure Schedule, since the Most Recent Filing Date
Parent has conducted its business only in the ordinary course consistent with
past practice, and there has not been any material adverse change (as defined in
Section 9.03) with respect to Parent.
SECTION 4.08 No Undisclosed Liabilities. Except as and to the extent
set forth in Section 4.08 of the Disclosure Schedule, as of the Most Recent
Filing Date, to the best knowledge of the Parent, neither the Parent nor the
Acquisition Sub had any liabilities or obligations of any nature, whether or not
accrued, contingent or otherwise, that would be required by GAAP to be reflected
on a balance sheet of Parent or Acquisition Sub (including the notes thereto).
Since the Most Recent Filing Date, except as and to the extent set forth in
Section 4.08 of the Disclosure Schedule and except for liabilities or
obligations incurred in the ordinary course of business consistent with past
practice, neither the Parent nor the Acquisition Sub has incurred any
liabilities of any nature, whether or not accrued, contingent or otherwise, that
could be reasonably expected to have a material adverse effect on the Parent or
the Acquisition Sub, or would be required by GAAP to be reflected on a
consolidated balance sheet of the Parent or the Acquisition Sub (including the
notes thereto).
SECTION 4.09 Benefit Plans. Neither Parent or Acquisition Sub has
operated any Pension Plan, Welfare Plan, or other plan, arrangement or policy
(written or oral) relating to stock options, stock purchases, compensation,
deferred compensation, bonuses, severance, fringe benefits or other employee
benefits.
SECTION 4.10 Other Compensation Arrangements. Neither the Parent nor
the Acquisition Sub is a party to any oral or written (i) consulting agreement
that is not terminable on not more than 30 calendar days notice, or union or
collective bargaining agreement, (ii) agreement with any executive officer or
other key employee of Parent or Acquisition Sub, or (iii) agreement or plan,
including any stock option plan, stock appreciation right plan, restricted stock
plan or stock purchase plan.
SECTION 4.11 Litigation. To the knowledge of Parent, there is no suit,
claim, action, proceeding pending or threatened against Parent or Acquisition
Sub, nor is there any investigation against Parent or Acquisition Sub threatened
or pending before any Governmental Entity. Except as disclosed in Section 4.11
of the Disclosure Schedule, neither the Parent nor the Acquisition Sub is
subject to any outstanding order, judgment, writ, injunction or decree.
SECTION 4.12 Permits; Compliance with Law. Parent and Acquisition Sub
do not hold any permits, licenses, variances, exemptions, orders and approvals
of any Governmental Entities except for their incorporation and active status in
Florida (the "Parent Permits"). To its knowledge, as of the date of this
Agreement, no investigation, inquiry or review by any Governmental Entity with
respect to the Parent or Acquisition Sub is pending or threatened, nor has any
Governmental Entity indicated an intention to conduct any such investigation,
inquiry or review. To its knowledge, Parent is and at all times has been in full
compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 to the extent required.
SECTION 4.13 Tax Matters. Parent has filed or shall file as of the
Closing Date all of its tax returns required to be filed for its two most recent
fiscal years. All such returns and reports are accurate and correct in all
material respects. Parent has no 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 as of the Closing Date, and no
deficiency assessment or proposed adjustment of any such tax return is pending,
proposed or contemplated. To the knowledge of Parent, 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. To its knowledge, there are no outstanding
agreements or waivers extending the statutory period of limitation applicable to
any tax return of Parent.
SECTION 4.14 Intellectual Property.
(a) Parent does not own any Intellectual Property;
(b) no claims are pending or, to the best knowledge
of Parent, threatened that Parent
is infringing on or otherwise violating the rights of any person with regard to
any Intellectual Property and, to the best knowledge of the Parent, there are no
valid grounds for any such claims.
SECTION 4.15 INTENTIONALLY OMITTED.
SECTION 4.16 Labor Matters. Parent has no employees.
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SECTION 4.17 Title to Property. Parent has good and defensible title to
all of its properties and assets, free and clear of all liens, charges and
encumbrances, except liens for taxes not yet due and payable and such liens or
other imperfections of title, if any, as do not materially detract from the
value of or interfere with the present use of the property affected thereby or
which could not reasonably be expected to have a material adverse effect.
SECTION 4.18 Environmental Matters. Parent is not aware of nor to its
knowledge it has ever received notice of any past or present violations of any
environmental laws or any event, condition, circumstance, activity, practice,
incident, action or plan which is reasonably likely to interfere with or prevent
continued compliance with or which would give rise to any common law or
statutory liability, or otherwise form the basis of any claim, action, suit or
proceeding against Parent based on or resulting from the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
handling, emission, discharge or release into the environment of any pollutant,
contaminant, or hazardous or toxic material or waste.
SECTION 4.19 Interested Party Transactions. Except as set forth in
Section 4.19 of the Disclosure Schedule, since the Most Recent Filing Date, no
event has occurred that would be required to be reported by Parent as a Certain
Relationship or Related Transaction, pursuant to Item 404 of Regulation S-B
promulgated by the SEC.
SECTION 4.20 Absence of Certain Payments. To its knowledge, neither the
Parent nor any of its respective affiliates, officers, directors, employees or
agents or other people acting on behalf of any of them have (i) engaged in any
activity prohibited by the United States Foreign Corrupt Practices Act of 1977,
or any other similar law, regulation, decree, directive or order of any other
country and (ii) without limiting the generality of the preceding clause (i),
used any corporate or other funds for unlawful contributions, payments, gifts or
entertainment, or made any unlawful expenditures relating to political activity
to government officials or others. To its knowledge, neither the Parent nor any
of its respective affiliates, directors, officers, employees or agents of other
persons acting on behalf of any of them, has accepted or received any unlawful
contributions, payments, gifts or expenditures.
SECTION 4.21 Insurance. Parent does not maintain any
insurance policies.
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SECTION 4.22 Full Disclosure. No statement contained in any certificate
or schedule furnished or to be furnished by the Parent and Acquisition Sub to
Company, or pursuant to the provisions of, this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any material fact necessary, in light of the circumstances under which it was
made, in order to make the statements herein or therein not misleading.
SECTION 4.23 Contracts. To its knowledge after reasonable inquiry
Parent is not a party to any agreement (or group of related agreements) that:
(a) provides for payments in excess of $25,000 per annum; (b) concerns a
partnership or joint venture; (c) guarantees any indebtedness; (d) concerns
noncompetition; (e) relates to monies advanced or loaned to any of its
directors, officers or employees; or (f) a default or termination would have a
material adverse effect on the business, financial condition, operations or
results of operations of Parent or Acquisition Sub.
SECTION 4.24 Real Property. Neither Parent nor Acquisition Sub owns or
leases any real property.'
SECTION 4.25 Brokers. Neither Parent nor Acquisition Sub has engaged
any broker, investment banker, financial advisor or other person, pursuant to
which such party is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement.
ARTICLE V
Covenants
SECTION 5. 01 Payment of Certain Liabilities.
(a) As of the Effective Time, Parent shall cause all liabilities and
obligations of Parent (including legal, accounting and financial advisor fees)
to be satisfied in full other than those liabilities and obligations set forth
on Section 5.01 of the Disclosure Schedule. (b) As of the Effective Time,
Company shall cause all liabilities and obligations of Company (including legal,
accounting and financial advisor fees) to be satisfied in full other than those
liabilities and obligations set forth on Section 5.01 of the Disclosure
Schedule.
ARTICLE VI
Additional Agreements
SECTION 6.01 Fees and Expenses. , All fees and expenses incurred in
connection with the Merger, this Agreement and the transactions contemplated by
this Agreement shall be paid as of the Closing Date by the party incurring such
fees or expenses, whether or not the Merger is consummated.
SECTION 6.02 Indemnification; Insurance.
(a) Parent and Acquisition Sub agree that all rights to
indemnification for acts or omissions occurring prior to the Effective Time now
existing in favor of the current or former directors or officers of Company (the
"Company Indemnified Parties") and the current or former directors or officers
of Parent (the "Parent Indemnified Parties") as provided in their respective
certificates of incorporation or bylaws (or similar organizational documents) or
existing indemnification contracts shall survive the Merger and shall continue
in full force and effect in accordance with their terms for a period of one (1)
year.
(b) This Section 6.02 shall survive the consummation of the
Merger at the Effective Time, is intended to benefit the Company, Parent, the
Surviving Corporation, the Company Indemnified Parties and the Parent
Indemnified Parties and their respective heirs, personal representatives,
successors and assigns, and shall be binding on all successors and assigns of
the Company, Parent and the Surviving Corporation.
ARTICLE VII
Miscellaneous
SECTION 7. 01 Nonsurvival of Representations and Warranties. None of
the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time. This
Section 9.01 shall not limit any covenant or agreement of the parties which by
its terms contemplates performance after the Effective Time of the Merger.
SECTION 7. 02 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed), sent by overnight courier (providing proof of
delivery) or mailed by registered or certified mail (return receipt requested)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
c/o ▇▇▇▇ ▇▇▇▇▇▇
( a) if to Parent or New Mountaintop Corporation
Acquisition Sub, to: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A.
1555 Palm Beach ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
( b) if to the Company, to: Trust Licensing, LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 7. 03 Interpretation. When a reference is made in this
Agreement to an Article or a Section, such reference shall be to an Article or a
Section of this Agreement unless otherwise indicated. The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." The phrase
"made available" in this Agreement shall mean that the information referred to
has been made available if requested by the party to whom such information is to
be made available. As used in this Agreement, the term "subsidiary" of any
person means another person, an amount of the voting securities, other voting
ownership or voting partnership interests of which is sufficient to elect at
least a majority of its Board of Directors or other governing body (or, if there
are no such voting interests, 50% or more of the equity interests of which) is
owned directly or indirectly by such first person, and the term "affiliate"
shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange
Act. As used in this Agreement, "material adverse change" or "material adverse
effect" means, when used in connection with a person, any change or effect (or
any development that, insofar as can reasonably be foreseen, is likely to result
in any change or effect) that, individually or in the aggregate with any such
other changes or effects, is materially adverse to the business, prospects,
assets (including intangible assets), financial condition or results of
operations of such person and its subsidiaries taken as a whole. In addition, if
Company receives notice that it may be infringing the Intellectual Property of
another party or if it receives notice of a disallowance of a patent application
from the United States Patent and Trademark, it shall be deemed to be a material
adverse change or have a material adverse effect. "SEC Documents" shall refer to
any reports filed by Parent with the SEC since the Form 10-KSB for the year
ended December 31, 2002, including Form 10-KSB for the year ended December 31,
2002, Form 10-KSB for the year ended December 31, 2003, and all Form 10-QSBs
from the three month period ending March 31, 2002 and through and including the
three month period ending June 30, 2004.
SECTION 7. 04 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when said counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
SECTION 7. 05 Entire Agreement; Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
SECTION 7. 06 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Florida and, to the extent
provided herein, the FBCA and the FLLCA , without regard to any applicable
conflicts of law.
SECTION 7. 07 Publicity. Except as otherwise required by law, for so
long as this Agreement is in effect, neither the Company nor Parent shall, nor
shall Parent permit Acquisition Sub to, issue or cause the publication of any
press release or other public announcement with respect to the transactions
contemplated by this Agreement without the consent of the other party, which
consent shall not be unreasonably withheld or delayed.
SECTION 7. 08 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
SECTION 7. 09 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement. In addition, each of the parties
hereto (i) consents to submit such party to the personal jurisdiction of any
Federal court located in the State of Florida in the event any dispute arises
out of this Agreement or any of the transactions contemplated hereby, (ii)
agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, and (iii)
agrees that such party will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a Federal
court sitting in the State of Florida. The prevailing party in any judicial
action shall be entitled to receive from the other party reimbursement for the
prevailing party's reasonable attorneys' fees and disbursements, and court
costs.
SECTION 7. 10 No Remedy in Certain Circumstances. Each party agrees
that, should any court or other competent authority hold any provision of this
Agreement to be null, void or unenforceable, or order any party to take any
action inconsistent herewith or not to take an action consistent herewith or
required hereby, the validity, legality and enforceability of the remaining
provisions and obligations contained or set forth in this Agreement shall not in
any way be affected or impaired thereby, unless the foregoing inconsistent
action or the failure to take an action constitutes a material breach of this
Agreement or makes this Agreement impossible to perform, in which case this
Agreement shall terminate pursuant to Article VIII hereof. Except as otherwise
contemplated by this Agreement, to the extent that a party hereto took an action
inconsistent herewith or failed to take action consistent herewith or required
hereby pursuant to an order or judgment of a court or other competent authority,
such party shall incur no liability or obligation unless such party did not in
good faith seek to resist or object to the imposition or entering of such order
or judgment.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, Parent, Acquisition Sub and Company have caused
this Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
NEW MOUNTAINTOP CORPORATION
By:_________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
NMC ACQUISITION CORP.
By:________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
TRUST LICENSING, LLC
By:________________________________
▇▇▇▇▇▇▇ ▇▇▇▇