EXHIBIT 99.2
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STOCK PURCHASE AGREEMENT
DATED AS OF DECEMBER 22, 2000
by and among
ITS S.L., AND OTHERS
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
BELCO SYSTEMS TECHNOLOGIES CORP.,
FMS DISTRIBUTORS, INC., RAFFLES TOHO, INC.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
GRANITE ENTERPRISES and ▇▇▇▇▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
PAGE
ARTICLE I
SALE OF STOCK............................................................................................1
Section 1.1 Sale of Stock. .....................................................................1
Section 1.2 Price...............................................................................1
Section 1.3 Closing ............................................................................1
ARTICLE II
REPRESENTATIONS OF SELLERS ..............................................................................2
Section 2.1 Ownership of Stock..................................................................2
Section 2.2 Authorization and Validity of Agreement.............................................2
Section 2.3 Consents and Approvals; No Violations...............................................2
Section 2.4 Existence and Good Standing.........................................................2
Section 2.5 Capital Stock.......................................................................3
Section 2.6 Subsidiaries........................................................................3
Section 2.7 Financial Statements................................................................3
Section 2.8 Securities Filings..................................................................4
Section 2.9 Indebtedness........................................................................4
Section 2.10 Litigation.........................................................................5
Section 2.11 Taxes..............................................................................5
Section 2.12 Broker's or Finder's Fees..........................................................5
Section 2.13 Transactions with Affiliates.......................................................5
Section 2.14 Accuracy of Information............................................................5
ARTICLE III
REPRESENTATIONS OF PURCHASER.............................................................................5
Section 3.1 Existence and Good Standing of Purchaser; Authorization.............................5
Section 3.2 Consents and Approvals; No Violations...............................................6
Section 3.3 Purchase for Investment.............................................................6
Section 3.4 Available Funds.....................................................................7
Section 3.5 Litigation..........................................................................7
Section 3.6 No Outside Reliance.................................................................7
Section 3.7 Broker's or Finder's Fees...........................................................7
Section 3.8 Accuracy of Information.............................................................7
ARTICLE IV
CERTAIN AGREEMENTS.......................................................................................7
Section 4.1 Reasonable Best Efforts.............................................................7
Section 4.2 Payment of Pre-Closing Accounts Payable.............................................7
ARTICLE V
CONDITIONS TO PURCHASER'S OBLIGATIONS....................................................................8
Section 5.1 Truth of Representations and Warranties.............................................8
Section 5.2 Performance of Agreements ..........................................................8
Section 5.3 No Injunction.......................................................................8
Section 5.4 No Litigation.......................................................................8
Section 5.5 Delivery of Books and Records.......................................................8
ARTICLE VI
CONDITIONS TO SELLERS' OBLIGATIONS.......................................................................9
Section 6.1 Truth of Representations and Warranties.............................................9
Section 6.2 Performance of Agreements...........................................................9
Section 6.3 No Injunction.......................................................................9
ARTICLE VII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.............................................................9
Section 7.1 Survival of Representations.........................................................9
Section 7.2 Indemnities ........................................................................9
ARTICLE VIII
MISCELLANEOUS ..........................................................................................11
Section 8.1 Expenses...........................................................................11
Section 8.2 Governing Law; Consent to Jurisdiction.............................................11
Section 8.3 Captions...........................................................................11
Section 8.4 Notices............................................................................11
Section 8.5 Parties in Interest................................................................12
Section 8.6 Counterparts.......................................................................12
Section 8.7 Entire Agreement...................................................................12
Section 8.8 Third Party Beneficiaries..........................................................12
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated and effective as of
December 22, 2000, by and among ITS S.L., Carnival Enterprises Limited, Volim
Holding B.V., Geeris Holding Nederland B.V., and their designees (collectively,
the "Purchaser") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, BELCO Systems Technologies
Corp., FMS Distributors, Inc., Raffles Toho, Inc., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Granite Enterprises, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇▇▇▇▇ (collectively,
the "Sellers").
W I T N E S S E T H :
WHEREAS, Sellers are the owners of an aggregate of 3,810,500 shares of
the issued and outstanding Common Stock, par value $.001 per share (the
"Stock"), of Technology Systems International, Inc., a corporation organized
under the laws of the State of Florida (the "Company").
WHEREAS, Sellers desire to sell, and Purchaser desires to purchase, the
Stock pursuant to this Agreement; and
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
SALE OF STOCK
Section 1.1 SALE OF STOCK. Subject to the terms and conditions
herein stated, Sellers agree to sell, assign, transfer and deliver to Purchaser
on the Closing Date, and Purchaser agrees to purchase from Sellers on the
Closing Date, all of the shares of the Stock. The certificate(s) representing
the Stock shall be duly endorsed in blank, or accompanied by stock powers duly
executed in blank, by Sellers.
Section 1.2 PRICE. On the Closing Date, Purchasers shall pay
to Sellers the amount of $250,000 (U.S.) (the "Purchase Price"). Not less than
one business day prior to the Closing Date, the Purchase Price shall be paid to
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇., P.C. Trust Account, as escrow agent, and the Sellers
shall deliver the Stock to ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., duly endorsed for transfer to
Purchaser or their designees. Upon the Closing, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., P.C.
shall release the Sellers' proceeds to Sellers' agent, ▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC, Trust Account , and shall deliver the Stock to Purchaser.
Section 1.3 CLOSING. The closing of the Sale referred to in
Section 1.1 (the "Closing")
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shall take place at 10:00 a.m. on December 22, 2000. Such time and date are
herein referred to as the "Closing Date."
ARTICLE II
REPRESENTATIONS OF SELLERS
Each Seller, jointly and severally, represent and warrant to
Purchaser as follows:
Section 2.1 OWNERSHIP OF STOCK. Sellers are the lawful owners
of all of the shares of Common Stock to be sold to the Purchaser, which shall be
free and clear of all liens, encumbrances, restrictions and claims of every kind
and character, other than any of the foregoing arising from actions by Purchaser
("Encumbrances") as of the Closing referenced below. The delivery to Purchaser
of the Stock pursuant to the provisions of this Agreement will transfer to
Purchaser valid title thereto, free and clear of any and all Encumbrances.
Section 2.2 AUTHORIZATION AND VALIDITY OF AGREEMENT. Sellers
have full power and authority (corporate or otherwise) to execute and deliver
this Agreement, to perform their obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Sellers and, assuming the due execution of this Agreement by
Purchaser, is a valid and binding obligation of each Seller, enforceable against
each Seller in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization and similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles.
Section 2.3 CONSENTS AND APPROVALS; NO VIOLATIONS. The
execution and delivery of this Agreement by Sellers and the consummation by
Sellers of the sale of the Stock as contemplated herein and the other
transactions contemplated hereby (the "Sale") (a) will not violate the
provisions of the Articles of Incorporation or Bylaws of the Company, (b) will
not violate any statute, rule, regulation, order or decree of any public body or
authority by which any Seller, the Company or any Subsidiary (as hereinafter
defined) is bound or by which any of their respective properties or assets are
bound, (c) will not require any filing with, or permit, consent or approval of,
or the giving of any notice to, any United States governmental or regulatory
body, agency or authority on or prior to the Closing Date (as defined in Section
1.3), and (d) will not result in a violation or breach of, conflict with,
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation, payment or acceleration)
under, or result in the creation of any Encumbrance upon any of the properties
or assets of any Sellers, the Company or any Subsidiary under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
franchise, permit, agreement, lease, franchise agreement or any other instrument
or obligation to which any Seller, the Company or any Subsidiary is a party, or
by which they or any of their respective properties or assets may be bound.
Section 2.4 EXISTENCE AND GOOD STANDING. (a) The Company is a
corporation duly
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organized, validly existing and in good standing under the laws of the State
of Florida and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being
conducted. The Company is duly qualified or licensed as a foreign corporation
to conduct its business, and is in good standing in each jurisdiction in
which the character or location of the property owned, leased or operated by
it or the nature of the business conducted by it makes such qualification
necessary, except where the failure to be so duly qualified or licensed would
not have a Material Adverse Effect. The term "Material Adverse Effect" means
any circumstance, change in or effect on the Company or any of its
Subsidiaries that is materially adverse to the business, operations,
properties, financial condition or results of operations of the Company and
its Subsidiaries, taken as a whole.
(b) Each Subsidiary is a corporation duly organized, validly
existing and is in good standing under the laws of its own jurisdiction of
incorporation and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
Each Subsidiary is duly qualified or licensed as a foreign corporation to do
business and, to the extent such concept is applicable, is in good standing in
each jurisdiction in which the character or location of the property owned,
leased or operated by it or the nature of the business conducted by it makes
such qualification necessary, except where the failure to be so qualified or
licensed would not have a Material Adverse Effect. As used in this Agreement (i)
"Subsidiary" shall mean any Person of which the Company (either alone or
together with other Subsidiaries of the Company) owns, directly or indirectly,
more than 50% of the stock or other equity interests that are generally entitled
to vote for the election of the board of directors or other governing body of
such Person and (ii) "Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a limited liability company, a
trust, an unincorporated organization and a government or other department or
agency thereof.
Section 2.5 CAPITAL STOCK. The Company has an authorized
capitalization consisting of 25,000,000 shares of Common Stock, par value $.001
per share, of which 4,450,000 shares are issued and outstanding as of the date
hereof; and 5,000,000 shares of preferred stock, of which no shares are
outstanding as of the date hereof. All such outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. There are no
outstanding subscriptions, options, warrants, rights, calls, commitments,
conversion rights, rights of exchange, plans or other agreements providing for
the purchase, issuance or sale of any shares of the capital stock of the
Company, except warrants to purchase 880,000 shares of Common Stock, at an
exercise price of $1.00 per share.
Section 2.6 SUBSIDIARIES. Schedule 2.6 is a complete list of
all Subsidiaries of the Company. The Company is the record owner of the
percentage of the shares of capital stock of each Subsidiary that is listed
opposite such Subsidiary on Schedule 2.6. No capital stock of any
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Subsidiary is or may become required to be issued, transferred or sold for any
reason pursuant to any existing agreement to which Seller or Parent is a party,
and all of the outstanding shares of capital stock of each Subsidiary are
validly issued, fully paid and nonassessable and are owned free and clear of any
Encumbrance with respect thereto.
Section 2.7 FINANCIAL STATEMENTS. Sellers have heretofore
furnished Purchaser with the balance sheets of the Company and its Subsidiaries
for the fiscal years ended September 30, 1999 and 2000, and the related
statements of income and cash flows for the periods then ended, audited by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, P.A.(the "Financial Statements"). The Financial
Statements, including the footnotes thereto have been prepared in accordance
with generally accepted accounting principles and fairly present in all material
respects the financial position of the Company and the Subsidiaries and the
results of their operations and cash flows at such dates and for such periods.
Since September 30, 2000, there has been no material adverse change in the
financial condition, operations, or business of the Company or any of its
Subsidiaries.
Section 2.8 SECURITIES FILINGS. Since January 1, 1999, and
prior to the execution and delivery of this Agreement, the Company has filed all
forms, reports, statements and other documents required to be filed with the
Securities and Exchange Commission (the "SEC"), including, without limitation,
(A) all Annual Reports on Form 10-KSB, (B) all Quarterly Reports on Form 10-QSB,
(C) all proxy statements relating to meetings of shareholders (whether annual or
special), (D) all Reports on Form 8-K, (E) all other reports or registration
statements and (F) all amendments and supplements to all such reports and
registration statements filed from January 1, 1999 to the date hereof
(collectively, the "SEC Reports"). The SEC Reports (i) were prepared in all
material respects in accordance with the requirements of the Securities Act of
1933 as amended (the "1933 Act") and the Securities Exchange Act of 1934 as
amended, and the rules and regulations of the SEC thereunder applicable to such
SEC Reports and (ii) did not at the time they were filed and as of the date
hereof, and, with respect to registration statements as of their effective
dates, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Section 2.9 INDEBTEDNESS. The Company and each of its
Subsidiaries have no outstanding Indebtedness of any kind (including contingent
obligations, tax assessments and unusual forward or long-term commitments). All
of the $21,453 of liabilities disclosed in September 30, 2000 annual report and
all other payables of the Company have been or will be paid in full as of the
Closing Date (currently believed to be a total of $20,126 as of December 22,
2000) by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to a Technology Transfer Agreement. For
purposes of this Agreement, "INDEBTEDNESS" shall mean any obligation for
borrowed money, including without limitation (A) any obligation owed for all or
any part of the purchase price of capital assets, (B) accounts payable included
in current liabilities and incurred in respect of property purchased and
operations in the ordinary course of business, (C) any obligations secured by
any lien in respect of property even though the person owning the property has
not assumed or become liable for the payment of such
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obligation, (D) any guarantee with respect to any of the foregoing
indebtedness of another person, and (E) obligations in respect of letters of
credit.
Section 2.10 LITIGATION. There are no (i) actions, suits or
legal, equitable, arbitrative or administrative proceedings pending, or to the
Knowledge of the Company, threatened against the Company or any of its
Subsidiaries or (ii) judgements, injunctions, writs, rulings or orders by any
Governmental Person against the Company or any of its Subsidiaries.
Section 2.11 TAXES. The Company and each of its Subsidiaries
has filed all Federal, state and foreign income tax returns and all other
material tax returns that are required to be filed by it and has paid all taxes
due pursuant to such returns or pursuant to any assessment received by it in
writing and all other related penalties and charges other than those being
contested in good faith and by appropriate proceedings. The charges, accruals
and reserves on the other governmental charges are, in the opinion of the
Company, adequate. Neither the Company nor any of its Subsidiaries has given or
been requested to give a waiver of the statute of limitations relating to the
payment of Federal or other taxes.
Section 2.12 BROKER'S OR FINDER'S FEES. No agent, broker, firm
or other Person acting on behalf of Sellers or the Company is, or will be,
entitled to any commission or broker's or finder's fees from any of the parties
hereto, or from any Person controlling, controlled by or under common control
with any of the parties hereto, in connection with any of the transactions
contemplated herein except for compensation due to ▇▇▇▇▇ Taubman & Neville, LLC.
Section 2.13 TRANSACTIONS WITH AFFILIATES. Schedule 2.13
attached hereto identifies all material contracts, commitments and agreements in
effect as of the date hereof and which will continue in effect after the
consummation of the Sale, by and between the Company or any Subsidiary on the
one hand and Sellers or any of their Affiliates on the other. As used in this
Agreement, an "Affiliate" shall mean any Person directly or indirectly
controlling, controlled by or under direct or indirect common control with
another Person, or any relative (including by marriage) of a Person.
Section 2.14 ACCURACY OF INFORMATION. None of the
representations and warranties of Sellers contained herein or in the documents
furnished by them pursuant hereto contain any material misstatement of fact, or
omit to state any material fact necessary to make the statements herein or
therein in light of the circumstances in which they were made not misleading.
ARTICLE III
REPRESENTATIONS OF PURCHASER
Purchaser represents and warrants as follows:
Section 3.1 EXISTENCE AND GOOD STANDING OF PURCHASER;
AUTHORIZATION.
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(a) ITS S.L. is a corporation duly organized, validly existing
and in good standing under the laws of Spain.
(b) Purchaser has full corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement, and all of the Ancillary Documents to which it is
or will be a party, by Purchaser, and the consummation by it of the transactions
contemplated hereby and thereby, have been duly authorized and approved by its
Board of Directors, and no other corporate or shareholder action on the part of
Purchaser or its shareholders is necessary to authorize the execution, delivery
and performance of this Agreement or the Ancillary Documents by Purchaser and
the consummation of the Sale and the other transactions contemplated hereby or
thereby. This Agreement has been (and the Ancillary Documents will be or have
been) duly executed and delivered by Purchaser and, assuming the due execution
of this Agreement by Sellers, will constitute valid and binding obligations of
Purchaser enforceable against Purchaser in accordance with their terms, except
to the extent that enforceability may be subject to applicable bankruptcy,
insolvency, reorganization and similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles. As used herein,
the term "Ancillary Documents" shall mean all of the agreements (other than this
Agreement), certificates and documents required to be delivered on or prior to
the Closing Date in connection with the transactions contemplated hereby and
thereby.
Section 3.2 CONSENTS AND APPROVALS; NO VIOLATIONS. The
execution and delivery of this Agreement or any of the Ancillary Documents by
Purchaser and the consummation of the transactions contemplated hereby (a) will
not violate any provisions of the Certificate of Incorporation or Bylaws of
Purchaser, (b) will not violate any statute, rule, regulation, order or decree
of any public body or authority by which Purchaser is bound or by which any of
its properties or assets are bound, (c) will not require any filing with, or
permit, consent or approval of, or the giving of any notice to, any governmental
or regulatory body, agency or authority on or prior to the Closing Date and (d)
will not result in a violation or breach of, conflict with, constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation, payment or acceleration) under, or result in
the creation of any Encumbrance upon any of the properties or assets of
Purchaser under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, franchise, permit, agreement, lease, franchise
agreement or any other instrument or obligation to which Purchaser is a party,
or by which it or any of its properties or assets may be bound.
Section 3.3 PURCHASE FOR INVESTMENT. Purchaser and its assigns
or designees will acquire the Stock solely for their own account for investment
purposes only and not with a view toward any resale or distribution thereof.
Purchaser agrees that the Stock may not be sold, transferred, offered for sale,
pledged, hypothecated or otherwise disposed of without registration under the
Securities Act of 1933, as amended, except pursuant to an exemption from such
registration available under such Act, and without compliance with the
securities laws of other
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jurisdictions, to the extent applicable. Purchaser and its assigns or
designees have such knowledge and experience in financial and business
matters that they are capable of evaluating the merits and risks of the
purchase of the Stock. Purchaser confirms that the Company and Sellers have
made available to Purchaser the opportunity to ask questions of the officers
and management employees of the Company and to acquire additional information
about the business and financial condition of the Company and its
Subsidiaries.
Section 3.4 AVAILABLE FUNDS. Purchaser will have on the
Closing Date sufficient funds to perform all of its obligations under this
Agreement, including, without limitation, to make the payments required
hereunder described in Section 1.2 hereto.
Section 3.5 LITIGATION. There is no action, suit or
proceeding, at law or in equity by any Person or any arbitration or any
administrative or other proceeding before any governmental body or
instrumentality or agency, pending or, to the knowledge of the Purchaser,
threatened in writing, which is reasonably likely to have a material adverse
effect on Purchaser's ability to consummate the Sale and the other transactions
contemplated by this Agreement.
Section 3.6 NO OUTSIDE RELIANCE. Purchaser has not relied and
is not relying upon any statement or representation not made in this Agreement
or a Schedule hereto or in any certificate or document required to be provided
by the Company or the Sellers pursuant to this Agreement.
Section 3.7 BROKER'S OR FINDER'S FEES. No agent, broker, firm
or other Person acting on behalf of Purchaser is, or will be, entitled to any
commission or broker's or finder's fees from any of the parties hereto, or from
any Person controlling, controlled by or under common control with any of the
parties hereto, in connection with any of the transactions contemplated herein
other than Safeguard Advisors Ltd..
Section 3.8 ACCURACY OF INFORMATION. None of the
representations and warranties of Purchaser contained herein or in the documents
furnished pursuant hereto contain any material misstatement of fact, or omit to
state any material fact necessary to make the statements herein or therein in
light of the circumstances in which they were made not misleading.
ARTICLE IV
CERTAIN AGREEMENTS
Section 4.1 REASONABLE BEST EFFORTS. Each of the parties
hereto agrees to use its reasonable best efforts to take, or cause to be taken,
all action to do or cause to be done, and to assist and cooperate with the other
party hereto in doing, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement, including, but not limited to, (a) the obtaining
of all necessary waivers, consents and approvals from governmental or regulatory
agencies or authorities and the making of all necessary registrations and
filings and the taking of all reasonable steps as may be
7
necessary to obtain any approval or waiver from, or to avoid any action or
proceeding by, any governmental agency or authority, (b) the obtaining of all
necessary consents, approvals or waivers from third parties and (c) the
defending of any lawsuits or any other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including, without limitation, seeking to
have any temporary restraining order entered by any court or administrative
authority vacated or reversed.
Section 4.2 PAYMENT OF PRE-CLOSING ACCOUNTS PAYABLE. Sellers
shall pay all liabilities, claims, damages, encumbrances, taxes, accounts
payable or other Indebtedness of the Company existing on or prior to the Closing
Date, including, without limitation, the accounts payable and Indebtedness set
forth on Schedule 2.9; PROVIDED, FURTHER, that in no event shall the Sellers be
required to pay in excess of the sum of (i) the aggregate amount of any and all
unpaid payroll tax liabilities of the Company for all periods prior to the
Closing Date, plus (ii) $50,000 (the "Damage Cap"), under this Section 4.2;
PROVIDED, FURTHER, that the Damage Cap shall be reduced to the extent of any net
cash received by the Company after all related expenses (including attorneys
fees and costs) arising from any litigation or claims.
ARTICLE V
CONDITIONS TO PURCHASER'S OBLIGATIONS
The purchase of the Stock by Purchaser on the Closing Date is
conditioned upon the satisfaction or waiver, at or prior to the consummation of
the Sale, of the following conditions:
Section 5.1 TRUTH OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Sellers contained in this Agreement or in any
Schedule delivered pursuant hereto shall be true and correct in all material
respects on and as of the Closing Date with the same effect as though such
representations and warranties have been made on and as of such date (except to
the extent that any such representation and warranty is stated in this Agreement
to be made as of a specific date, in which case such representation and warranty
shall be true and correct as of such specified date).
Section 5.2 PERFORMANCE OF AGREEMENTS. Each and all of the
agreements of Sellers to be performed at or prior to the Closing Date pursuant
to the terms hereof shall have been duly performed in all material respects.
Section 5.3 NO INJUNCTION. No court or other government body
or public authority shall have issued an order which shall then be in effect
restraining or prohibiting the completion of the transactions contemplated
hereby.
Section 5.4 NO LITIGATION. There shall not be any action, suit
or proceeding pending or threatened that seeks to (i) make the consummation of
the transactions contemplated hereby illegal or otherwise restrict or prohibit
consummation thereof or (ii) require the divestiture by
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Purchaser or any of its subsidiaries or Affiliates of shares of stock or of
any business, assets or property of any of its subsidiaries or Affiliates, or
impose any material limitation on the ability of any of them to conduct their
business or to own or exercise control of such assets, properties or stock
and which, in either case, in the reasonable, good faith determination of
Purchaser has a significant likelihood of having a material adverse effect on
Purchaser.
Section 5.5 DELIVERY OF BOOKS AND RECORDS. Sellers shall
deliver true and complete copies of all books and records of the Company,
including, without limitation, minute books, certified copies of organizational
documents (Articles, Bylaws, etc.), accountant's work papers, stock transfer
books and ledgers, a certified shareholder list dated as of a date within five
days of the Closing Date, a current DTC report, and all other operational and
administrative records.
ARTICLE VI
CONDITIONS TO SELLERS' OBLIGATIONS
The sale of the Stock by Sellers on the Closing Date is
conditioned upon satisfaction or waiver, at or prior to the consummation of the
Sale of the following conditions:
Section 6.1 TRUTH OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser contained in this Agreement or in
any Ancillary Document shall be true and correct in all material respects on and
as of the Closing Date with the same effect as though such representations and
warranties had been made on and as of such date.
Section 6.2 PERFORMANCE OF AGREEMENTS. Each and all of the
agreements of Purchaser to be performed at or prior to the Closing Date pursuant
to the terms hereof or in any of the Ancillary Documents shall have been duly
performed in all material respects.
Section 6.3 NO INJUNCTION. No court or other government body
or public authority shall have issued an order which shall then be in effect
restraining or prohibiting the completion of the transactions contemplated
hereby.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 7.1 SURVIVAL OF REPRESENTATIONS. The representations
and warranties set forth in this Agreement shall survive for ninety (90) days
after the Closing Date, except for the representations and warranties set forth
in Section 2.11, which shall survive for five years after the Closing Date.
Section 7.2 INDEMNITIES. (a) Each Seller, jointly and
severally, hereby agrees to indemnify and hold harmless Purchaser, the Company
and/or its Subsidiaries from and against any
9
and all damages, claims, losses or expenses (including reasonable attorneys'
fees and expenses) ("Damages") actually suffered or paid by Purchaser, the
Company and/or its Subsidiaries as a result of the breach of any
representation or warranty made by any Seller in this Agreement. To the
extent that Sellers' undertakings set forth in this Section 7.2(a) may be
unenforceable, Sellers shall contribute the maximum amount that they are
permitted to contribute under applicable law to the payment and satisfaction
of all Damages incurred by the parties entitled to indemnification hereunder.
(b) Purchaser and the Company hereby agree to indemnify and
hold harmless Sellers against Damages actually suffered or paid by Sellers as a
result of the breach of any representation or warranty made by the Purchaser in
this Agreement. To the extent that the Purchaser's undertakings set forth in
this Section 7.2(b) may be unenforceable, the Purchaser and the Company shall
contribute the maximum amount that they are permitted to contribute under
applicable law to the payment and satisfaction of all Damages incurred by the
parties entitled to indemnification hereunder.
(c) Any party seeking indemnification under this Article VII
(an "Indemnified Party") shall give each party from whom indemnification is
being sought (each, an "Indemnifying Party") notice of any matter for which such
Indemnified Party is seeking indemnification, stating the amount of the Damages,
if known, and method of computation thereof, and containing a reference to the
provisions of this Agreement in respect of which such right of indemnification
is claimed or arises. The obligations of an Indemnifying Party under this
Article VII with respect to Damages arising from any claims of any third party
which are subject to the indemnification provided for in this Article VII
(collectively, "Third Party Claims") shall be governed by and contingent upon
the following additional terms and conditions: if an Indemnified Party shall
receive, after the Closing Date, initial notice of any Third Party Claim, the
Indemnified Party shall give the Indemnifying Party notice of such Third Party
Claim within such time frame as is necessary to allow for a timely response and
in any event within 30 days of the receipt by the Indemnified Party of such
notice; provided, however, that the failure to provide such timely notice shall
not release the Indemnifying Party from any of its obligations under this
Article VII except to the extent the Indemnifying Party is materially prejudiced
by such failure. The Indemnifying Party shall be entitled to assume and control
the defense of such Third Party Claim at its expense and through counsel of its
choice if it gives notice of its intention to do so to the Indemnified Party
within 30 days of the receipt of such notice from the Indemnified Party;
provided, however, that if there exists or is reasonably likely to exist a
conflict of interest that would make it inappropriate in the judgment of the
Indemnified Party (upon advice of counsel) for the same counsel to represent
both the Indemnified Party and the Indemnifying Party, then the Indemnified
Party shall be entitled to retain its own counsel, at the expense of the
Indemnifying Party, provided that the Indemnified Party and such counsel shall
contest such Third Party Claims in good faith. In the event the Indemnifying
Party exercises the right to undertake any such defense against any such Third
Party Claim as provided above, the Indemnified Party shall cooperate with the
Indemnifying Party in such defense and make available to the Indemnifying Party,
at the Indemnifying Party's expense, all witnesses, pertinent records, materials
and information in the Indemnified Party's possession or under the Indemnified
Party's
10
control relating thereto as is reasonably required by the Indemnifying Party.
Similarly, in the event the Indemnified Party is, directly or indirectly,
conducting the defense against any such Third Party Claim, the Indemnifying
Party shall cooperate with the Indemnified Party in such defense and make
available to the Indemnified Party, at the Indemnifying Party's expense, all
such witnesses, records, materials and information in the Indemnifying
Party's possession or under the Indemnifying Party's control relating thereto
as is reasonably required by the Indemnified Party. The Indemnifying Party
shall not, without the written consent of the Indemnified Party, (i) settle
or compromise any Third Party Claim or consent to the entry of any judgment
which does not include as an unconditional term thereof the delivery by the
claimant or plaintiff to the Indemnified Party of a written release from all
liability in respect of such Third Party Claim or (ii) settle or compromise
any Third Party Claim in any manner that may adversely affect the Indemnified
Party. Finally, no Third Party Claim which is being defended in good faith by
the Indemnifying Party or which is being defended by the Indemnified Party as
provided above in this Section 7.2(c) shall be settled by the Indemnified
Party without the written consent of the Indemnifying Party.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 EXPENSES. The parties hereto shall pay all of
their own expenses relating to the transactions contemplated by this Agreement,
including, without limitation, the fees and expenses of their respective
counsel, financial advisors and accountants.
Section 8.2 GOVERNING LAW; CONSENT TO JURISDICTION. (a) The
interpretation and construction of this Agreement, and all matters relating
hereto, shall be governed by the laws of the State of Florida applicable to
contracts made and to be performed entirely within the State of Florida.
(b) Each of the parties agrees that any legal action or
proceeding with respect to this Agreement may be brought in the Courts of the
State of Florida or the United States District Court for the Southern District
of Florida, and, by execution and delivery of this Agreement, each party hereto
hereby irrevocably submits itself in respect of its property, generally and
unconditionally, to the non-exclusive jurisdiction of the aforesaid courts in
any legal action or proceeding arising out of this Agreement. Each of the
parties hereto hereby irrevocably waives any objection which it may now or
thereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to in the preceding sentence. Each party hereto hereby consents
to process being served in any such action or proceeding by the mailing of a
copy thereof to the address set forth opposite its name below and agrees that
such service upon receipt shall constitute good and sufficient service of
process or notice thereof. Nothing in this paragraph shall affect or eliminate
any right to serve process in any other manner permitted by law.
Section 8.3 CAPTIONS. The Article and Section captions used
herein are for reference purposes only, and shall not in any way affect the
meaning or interpretation of this Agreement.
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Section 8.4 NOTICES. Any notice or other communications
required or permitted hereunder shall be sufficiently given if delivered in
person or sent by telecopy or by registered or certified mail, postage prepaid,
addressed as follows:
if to Purchaser, to them at:
ITS S.L.
c/o ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Edif, Marina Marbella, 3EA,
Avda, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇▇-▇▇▇-▇▇▇▇
and if to any Sellers, to them, care of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., at:
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or number as shall be furnished in writing by any such
party, and such notice or communication shall be deemed to have been given as of
the date so delivered, sent by telecopy or mailed.
Section 8.5 PARTIES IN INTEREST. This Agreement may not be
transferred, assigned, pledged or hypothecated by any party hereto, other than
by operation of law. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
Section 8.6 COUNTERPARTS. This Agreement may be executed in
two or more counterparts, all of which taken together shall constitute one
instrument.
Section 8.7 ENTIRE AGREEMENT. This Agreement, including the
Exhibits, Schedules and other documents referred to herein which form a part
hereof, and the Confidentiality Agreement and Ancillary Documents contain the
entire understanding of the parties hereto with respect to the subject matter
contained herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
Agreement.
Section 8.8 THIRD PARTY BENEFICIARIES. Each party hereto
intends that this Agreement
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shall not benefit or create any right or cause of action in or on behalf of
any Person other than the parties hereto.
IN WITNESS WHEREOF, each of the parties have caused this
Agreement to be executed, including their respective officers thereunto duly
authorized, all as of the day and year first above written.
PURCHASER: ITS S.L.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, President
CARNIVAL ENTERPRISES LIMITED
By:
----------------------------------------------
President
VOLIM HOLDING B.V.
By:
----------------------------------------------
President
GEERIS HOLDING NEDERLAND B.V.
By:
----------------------------------------------
President
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SELLERS:
BELCO SYSTEMS TECHNOLOGIES CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ ---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
FMS DISTRIBUTORS, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
RAFFLES TOHO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
GRANITE ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ --------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
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SCHEDULE 2.6
STOCK PURCHASE AGREEMENT
Technology Systems International, Inc. has no subsidiaries.
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SCHEDULE 2.9
STOCK PURCHASE AGREEMENT
Sellers shall pay all liabilities and other indebtedness of Technology
Systems International, Inc. described in its financial statements as of
September 30, 2000, and as of the Closing Date, through the exercise of warrants
of the Company, or otherwise, subject to the limitations of Section 4.2 of the
Agreement.
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SCHEDULE 2.13
STOCK PURCHASE AGREEMENT
There are no material contracts, commitments or agreements in effect as
of the Closing Date or which will continue in effect after the Closing Date, by
and between Technology Systems International, Inc. and any of the Sellers or any
of their Affiliates.
17