STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated this 21st day of June, 2004 by and among
IVP Technology Corporation d.b.a. ActiveCore Technologies, Inc., a Nevada
Corporation ("IVP") and Twincentric Limited, a UK Company ("Twincentric") and
▇▇▇▇ ▇▇▇▇▇▇ (the "Shareholder").
W I T N E S S E T H:
WHEREAS, IVP wishes to purchase the outstanding shares of TWINCENTRIC; and
WHEREAS, the Shareholder of TWINCENTRIC is desirous of proceeding with the
sale of his shares of capital stock of TWINCENTRIC effective the 21st day of
June, 2004 provided that IVP satisfies certain conditions for the issuance of
common shares sufficient to meet the purchase price indicated herein within six
business days after the Closing Date (as herein defined).
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
SALE OF STOCK
1.01. Stock To Be Sold. Subject to the terms and conditions of this
Agreement at the Closing referred to in Section 1.03 hereof (the "Closing") the
Shareholder will sell, assign, transfer and deliver the TWINCENTRIC shares to
IVP free and clear of all liens, charges or encumbrances of whatsoever nature.
1.02. Consideration. (a) Subject to the terms and conditions of this
Agreement, in reliance on the representations, warranties and agreements of
TWINCENTRIC and the Shareholder contained herein, and in consideration of the
sale, assignment, transfer and delivery of assets referred to in Section 1.01
effective the First day of June 2004, IVP shall issue an aggregate of the number
of shares of its common stock, par value $.001 per share ("Common Stock"), as
indicated in reference to the calculation indicated in Section 1.021 and Section
1.022. IVP shall issue an aggregate number of Common Stock calculated in
accordance with Section 1.021 (the "Shares") in the name of the Shareholder or
their designees and deliver the Shares to ▇▇▇▇ ▇▇▇▇▇▇, or his designees, in
escrow (the "Escrow") which shall hold the Shares as escrow agent (the "Escrow
Agent") and release the Shares to the Shareholder or their designees in
accordance with the provisions of an escrow agreement among all of the parties
hereto, a copy of which is attached hereto as Exhibit A (the "Escrow
Agreement"). The Shares shall be released from Escrow to the Shareholder as
described in Section 2.1, below.
1.021. Calculation of Share Consideration. The number of shares to
be provided to complete the purchase of TWINCENTRIC by IVP shall be determined
as Three Hundred and Fifty Thousand United States dollars, then dividing that
figure by the weighted average price of IVP shares obtained from the product of
the weighted average closing price of IVP shares on the OTCBB for the two
trading days prior to the effective date, plus the volume and price on the
effective date and the two trading days following the effective date to produce
the number of shares, ______________ to be delivered as consideration. In
addition IVP will also provide 1,000,000 shares to be distributed to existing
employees of TWINCENTRIC.
1.022. Earn Out: Over the next four quarters as measured by
ActiveCore's quarterly cutoff, the Shareholder shall be entitled to a further
allotment of Common Stock based on revenue achievement of TWINCENTRIC over and
above expected revenue attainment based on current sales levels as follows:
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Quarter Qtr 1 - FY 04 Qtr 2 - FY 04 Qtr 1 - FY 05 Qtr 2 - FY 05
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
July 1-Sept 30/04 Oct 1- Dec 31/04 Jan 1 - Mar 31/05 Apr 1 - June 30/05
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Assumed sales US Base 250,000 Base 250,000 Base 250,000 Base 250,000
Dollars
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Potential sales e.g. 300,000 e.g. 400,000 e.g. 500,000 e.g. 1,000,000
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Difference 50,000 150,000 250,000 750,000
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
10% 10% 10% 10%
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Monetary value 5,000 15,000 25,000 75,000
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Assumed price Price e.g. .05 Price e.g. .10 Price e.g. .15 Price e.g. .20
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
Shares 100,000 shares 150,000 shares 166,666 shares 375,000 shares
---------------------- ---------------------- ------------------------ ----------------------- -----------------------
The entitlement of the Shareholder to Common Stock will be issued to the
Shareholder within 30 days of the end of the relevant quarter.
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1.03. Closing. The Closing of the transactions contemplated by this Agreement
will take place at the offices of Twincentric no later than June 21, 2004.
(a) At the Closing, the shareholder will deliver: i) share
certificates evidencing the shares of TWINCENTRIC being acquired by IVP hereby,
endorsed in favor of IVP; (ii) copies of duly executed employment agreements
between the Shareholder and IVP in the forms annexed hereto as Exhibits A, B,
(collectively, the "Employment Agreements"); and (iii) all other previously
undelivered documents required to be delivered by TWINCENTRIC and IVP at or
prior to the Closing in connection with the transactions contemplated by this
Agreement.
(b) At the Closing, IVP will deliver to TWINCENTRIC a board
resolution evidencing the authorization to issue shares in the names of the
Shareholder in the amounts required as agreed to complete the purchase of the
shares of TWINCENTRIC (i) a duly executed Escrow Agreement in the form annexed
hereto as Exhibit C; (ii) post closing - certificates evidencing the shares of
Common Stock issued as described herein, registered in the name of the
Shareholder or their designees, which certificates shall be held by the Escrow
Agent in accordance with the provisions of the Escrow Agreement; and (iii) all
previously undelivered documents required to be delivered by IVP to TWINCENTRIC
or the Shareholder at or prior to the Closing in connection with the
transactions contemplated by this Agreement.
1.04. Further Assurances. After the Closing, TWINCENTRIC and the
Shareholder shall from time to time, at the request of IVP and without further
cost or expense to IVP, execute and deliver such other instruments of conveyance
and transfer and take such other actions as IVP may reasonably request, in order
to more effectively consummate the transactions contemplated hereby and to vest
in IVP good and marketable title to the TWINCENTRIC Stock being transferred
hereunder.
ARTICLE II
TERMS OF ESCROW; OTHER AGREEMENTS AMONG THE PARTIES
2.01. Release of Shares from Escrow.
(a) The Shares being issued into Escrow hereby shall be
released to the Shareholder from Escrow following registration. It is understood
that the shares following registration will be subject to Rule 144 of the SEC in
the same manner as all Directors and Officers of IVP. The shareholder will
consult with the Chairman and CEO with regard to any disposition of shares such
that any disposition shall be done in an orderly manner and in keeping with the
best interests of the all the shareholder of the company and its management.
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2.02. Satisfaction of Certain Financial Obligations of Twincentric
Limited. IVP guarantees the payment of all cash compensation payable under and
in accordance with the terms of the Employment Agreements. See attached
Schedules A, B,
2.03. Transfer Restrictions (a) The Shares may only be disposed of
after they have been released to the shareholder from Escrow and then only
pursuant to an effective registration statement under the Securities Act or
pursuant to an available exemption from or in a transaction not subject to the
registration requirements thereof. In connection with any transfer of any Shares
other than pursuant to an effective registration statement, IVP may require the
transferor thereof to provide to IVP an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be reasonably
satisfactory to IVP, to the effect that such transfer does not require
registration under the Securities Act of 1933 (the "Securities Act").
(b) The Shareholder agree to the imprinting, so long as is required
by this Section 2.03, of a legend on the certificates representing the Shares
substantially in the following form:
THESE SHARES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS.
2.04. Registration Rights with Respect to the Shares.
(a) Inclusion of Shares in Next Registration Statement. IVP
shall include the Shares in the next registration statement filed by it under
the Securities Act ("Registration Statement"), and, subject to its right to
withdraw such filing as described below, shall use its best efforts to cause the
effectiveness of the Registration Statement within ninety (90) days after the
filing thereof. Any such Registration Statement may include other shares of IVP
Stock which IVP is obligated to register. IVP shall maintain the effectiveness
of the Registration Statement until the expiration of a period which is one year
after the Registration Statement is declared effective by the SEC or such
earlier date when all Shares have been sold or may be sold without volume
restrictions pursuant to Rule 144(k) promulgated under the Securities Act, as
determined by counsel to IVP pursuant to a written opinion letter to such
effect, addressed and acceptable to IVP's transfer agent.
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(b) Postponement of Effective Date of Registration Statement.
IVP will be entitled to postpone or interrupt the effective date of any
Registration Statement filed in connection with such registration (and the use
of the prospectus contained therein) if IVP determines, in its best judgment,
after consultation with counsel, that such registration statement would require
the premature announcement of any material financing, acquisition, corporate
reorganization or other material corporate transaction or development involving
IVP which, in IVP's reasonable determination, would be materially detrimental to
the interests of IVP and its stockholders. Any such postponement or interruption
will be for a minimum period reasonably required to avoid such premature
disclosure. IVP promptly will give the Shareholder notice of such postponement
or interruption.
(c) Additional Registration Procedures. In connection with
IVP's obligations to file a Registration Statement, it shall:
(i) Notify the Shareholder promptly after it shall
receive notice thereof, of the time when such Registration Statement has become
effective with the SEC or a supplement to any prospectus forming a part of such
Registration Statement (a "Prospectus") has been filed.
(ii) Notify the Shareholder of any request by the SEC
for the amending or supplementing of such Registration Statement or Prospectus
or for additional information.
(iii) Prepare and file with the SEC such amendments and
supplements to such Registration Statement and Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the offer of
Shares covered by such Registration Statement during the period required for
distribution of such Shares, as provided in Section 2.04(a), above.
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(iv) Furnish to the Shareholder such number of copies of
the Prospectus (including any preliminary prospectus or supplemental or amended
prospectus) as the Shareholder may reasonably request in order to facilitate the
sale and distribution of the Shares.
(v) Prepare and file promptly with the SEC, and promptly
notify the Shareholder of the filing of, such amendment or supplement to such
Registration Statement or Prospectus as may be necessary to correct any untrue
statements of fact or omissions to state any facts necessary to make the
statements therein not misleading in light of the circumstances in which they
were made.
(vi) Advise the Shareholder, promptly after it receives
notice or obtains knowledge thereof, of the issuance of any stop order by the
SEC suspending the effectiveness of such Registration Statement or the
initiation or threatening of any proceeding for that purpose and promptly use
its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued.
(vii) Prepare and file with the SEC, promptly upon the
request of any of the Shareholder, any amendments or supplements to such
Registration Statement or Prospectus which, in the opinion of counsel for the
Shareholder, is required under the Securities Act or the rules and regulations
there under in connection with the distribution of the Shares by the
Shareholder.
(viii) Use its best efforts to register or qualify the
Shares covered by each Registration Statement under such state securities or
blue sky laws of such jurisdictions as the Shareholder and any underwriters may
reasonably request; provided, that IVP shall not be required to execute any
general consent to service of process or to qualify to do business as a foreign
corporation in any jurisdiction where it is not so qualified and provided
further that any such qualification or registration shall not exceed $5,000 for
any one jurisdiction.
(d) IVP may require the Shareholder to furnish to IVP such
information regarding the distribution of the Shares and the beneficial
ownership of the Shares as is required by law to be disclosed in the
Registration Statement and IVP may exclude from such registration Shares of any
holder who unreasonably fails to furnish such information within a reasonable
time after receiving such request.
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(e) If the Registration Statement refers to any holder of
Shares by name or otherwise as the holder of any securities of IVP, then such
holder of Shares shall have the right to require (if such reference to such
holder of Shares by name or otherwise is not required by the Securities Act or
any similar Federal statute then in force) the deletion of the reference to such
holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
(f) Each holder of Shares agrees by its acquisition of such
Shares that it will not offer or sell any Shares under the Registration
Statement until it has received copies of the prospectus included in the
Registration Statement as then amended or supplemented and notice from IVP that
such Registration Statement and any post-effective amendments thereto have
become effective and that such holder will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Shares pursuant to the Registration Statement.
(g) Each holder of Shares agrees by its acquisition of such
Shares that, upon receipt of a notice from IVP of the occurrence of any event of
the kind described in this Section 5.01 such holder will forthwith discontinue
disposition of Shares until such holder's receipt of the copies of the
supplemented prospectus and/or amended Registration Statement, or until it is
advised in writing by IVP that the use of the applicable prospectus may be
resumed.
(h) Expenses. All expenses incident to IVP's performance of or
compliance with this undertaking in this Section 2.04, including without
limitation all registration and filing fees (other than registration and filing
fees in excess of $5,000 imposed by state securities or blue sky laws), printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for IVP and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other persons retained by IVP (all
such expenses being herein called "Registration Expenses"), will be borne by
IVP. IVP will, in all events, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit and the expense of
any liability insurance. IVP shall not be responsible for any commission or
selling expenses incurred by the Shareholder of Shares, fees of counsel or
accountants retained by Shareholder or of any other fees not specifically
referenced above.
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(i) Reporting Requirements Under the Securities Exchange Act
of 1934. IVP shall timely file all such information, documents, and reports as
the SEC may require or prescribe under either Section 13 or 15(d) of the
Exchange Act. IVP shall, whenever requested by the Shareholder, notify the
Shareholder, in writing whether IVP has, as of the date specified by the
Shareholder, complied with the Exchange Act reporting requirements to which it
is subject for a period prior to such date as shall be specified by the
Shareholder. IVP acknowledges and agrees that the purposes of the requirements
contained in this Section 2.04(i) are: (I) to enable the Shareholder to comply
with the current public information requirement contained in Paragraph (c) of
Rule 144 under the Act should the Shareholder ever wish to dispose of any of the
Shares without registration under the Securities Act in reliance upon Rule 144
(or any equivalent successor provision); and (II) to qualify IVP for the use of
registration statements on Form S-3, or its equivalent successor form, in
connection with secondary distributions of securities of IVP. In addition, IVP
shall take such other measures and file such other information, documents, and
reports as shall hereafter be required by the SEC as a condition to the
availability of Rule 144 under the Securities Act (or any equivalent successor
provision), including, without limitation, using its best efforts to assure that
there shall be available at all times adequate public information with respect
to IVP and the IVP Stock. The obligation to make available adequate public
information and otherwise take such measures necessary to maintain the
availability of Rule 144 shall continue in the event that IVP shall cease to
become subject to the filing requirements of Section 13 or Section 15(d) of the
Exchange Act.
(j) Indemnification
(i) Indemnification by IVP. IVP shall, notwithstanding
any termination of this Agreement, indemnify and hold harmless each Shareholder
to the fullest extent permitted by applicable law, from and against any and all
losses, claims, damages, liabilities, settlements, judgments, costs (including,
without limitation, costs of preparation and reasonable attorneys' fees) and
expenses (collectively, "Losses"), incurred, arising out of or relating to any
untrue or alleged untrue statement of a material fact contained in the
Registration Statement, or any prospectus forming a part thereof (a
"Prospectus"), or in any amendment or supplement thereto, or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent that such untrue statements or omissions
are based solely upon information regarding such Shareholder furnished in
writing to IVP by or on behalf of such Shareholder expressly for use therein, or
to the extent that such information relates to such Shareholder or such
Shareholder's proposed method of distribution of Shares and was reviewed and
expressly approved in writing by such Shareholder expressly for use in the
Registration Statement, such Prospectus or such form of prospectus or in any
amendment or supplement thereto, provided, however, that under no circumstances
shall any Shareholder who is an officer or director of IVP and participated in
the preparation and filing of any such Registration Statement and Prospectus be
relieved from primary liability under the Securities Act or Securities Exchange
Act for material misstatements or omissions in said Registration Statement or
Prospectus. IVP shall notify the Shareholder promptly of the institution, threat
or assertion of any action, claim, suit, investigation or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or threatened (herein referred to as a
"Proceeding") of which IVP is aware in connection with the transactions
contemplated by this Agreement.
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(ii) Indemnification by the Shareholder. Each
Shareholder shall, severally and not jointly, indemnify and hold harmless IVP,
its directors, officers, agents and employees, each Person who controls IVP
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Securities Exchange Act), to the fullest extent permitted by applicable law,
from and against all Losses (as determined by a court of competent jurisdiction
in a final judgment not subject to appeal or review) arising solely out of or
based solely upon any untrue statement of a material fact contained in the
Registration Statement, any Prospectus, or any form of prospectus, or arising
solely out of or based solely upon any omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading to
the extent, that such untrue statement or omission is contained in any
information so furnished in writing by such Shareholder to IVP specifically for
inclusion in the Registration Statement or such Prospectus or to the extent that
such information relates to such Shareholder or such Shareholder's proposed
method of distribution of Shares and was reviewed and expressly approved in
writing by such Shareholder expressly for use in the Registration Statement,
such Prospectus or such form of Prospectus and as otherwise provided in Section
2.04(j)(i), above.
(iii) Conduct of Indemnification Proceedings. If any
Proceeding shall be brought or asserted against any person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party promptly shall notify
the person from whom indemnity is sought (the "Indemnifying Party") in writing,
and the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all fees and expenses incurred in connection with defense thereof;
provided, that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant to
this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have proximately
and materially adversely prejudiced the Indemnifying Party.
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An Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; or (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall have been advised by counsel that a conflict of interest is likely to
exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including reasonable
fees and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within ten (10)
business days of written notice thereof to the Indemnifying Party (regardless of
whether it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require
such Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such Indemnified Party is
not entitled to indemnification hereunder).
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(iv) Contribution. If a claim for indemnification under
Section 2.04(j)(i) or 2.04(j)(ii) is unavailable to an Indemnified Party because
of a failure or refusal of a governmental authority to enforce such
indemnification in accordance with its terms (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 2.04(j)(ii), any reasonable attorneys'
or other reasonable fees or expenses incurred by such party in connection with
any Proceeding to the extent such party would have been indemnified for such
fees or expenses if the indemnification provided for in this Section was
available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.04(j)(iv) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 2.04(j)(iv), the Shareholder
shall not be required to contribute, in the aggregate, any amount in excess of
the amount of proceeds actually received by the Shareholder from the sale of the
Shares. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
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(v) The obligations of IVP and the Shareholder under this
Section 2.04(j) shall survive the completion of any offering of Shares in a
registration statement under this Section 2.04, and otherwise.
2.05. Assignment of Registration Rights. The rights of a Shareholder
to have the Shares registered hereunder shall be automatically assignable by
such Shareholder to any assignee or transferee of all or a portion of the Shares
without the consent of IVP but only (a) after such time as Shares have been
released from Escrow and vested with a Shareholder; (b) if such Shareholder
agrees in writing with the transferee or assignee to assign such rights, and a
copy of such agreement is furnished to IVP within a reasonable time after such
assignment, (c) if IVP is, within a reasonable time after such transfer or
assignment, furnished with written notice of (i) the name and address of such
transferee or assignee, and (ii) the securities with respect to such
registration rights are being transferred or assigned, and (d) if, at or before
the time IVP receives the written notice contemplated by clause (c) of this
Section, the transferee or assignee agrees in writing with IVP to be bound by
all of the provisions of this Agreement. The rights to assignment shall apply to
the Shareholder' (and to subsequent) successors and assigns.
2.06. Confidentiality. Each party hereto will hold and will cause
its consultants and advisors to hold in strict confidence, unless compelled to
disclose by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law, all documents and information concerning
the other party furnished it by such other party or its representatives in
connection with the transactions contemplated by this Agreement (except to the
extent that such information can be shown to have been (i) previously known by
the party to which it was furnished, (ii) in the public domain through no fault
of such party, or (iii) later lawfully acquired from other sources by the party
to which it was furnished), and each party will not release or disclose such
information to any other person, except its auditors, attorneys, financial
advisors, bankers and other consultants and advisors in connection with this
Agreement. If the transactions contemplated by this Agreement are not
consummated, such confidence shall be maintained except to the extent such
information comes into the public domain through no fault of the party required
to hold it in confidence, and such information shall not be used to the
detriment of, or in relation to any investment in, the other party and all such
documents (including copies thereof) shall be returned to the other party
immediately upon the written request of such other party. Each party shall be
deemed to have satisfied its obligation to hold confidential information
concerning or supplied by the other party if it exercises the same care as it
takes to preserve confidentiality for its own similar information.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF IVP
IVP hereby represents, covenants and warrants to TWINCENTRIC and the
Shareholder as follows:
3.01. Corporate Organization; Etc. IVP is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has full corporate power and authority to carry on its business as it
is now being conducted and to own the properties and assets it now owns. The
copies of the Certificate of Incorporation and By-Laws of IVP attached hereto as
Exhibits D and E, respectively, are complete and correct copies of such
instruments as presently in effect.
3.02. Capitalization of IVP. As of the date of this Agreement, the
authorized capital stock of IVP consists of 500,000,000 shares of Common Stock,
$.001 par value per share, of which 426,875,692 shares are issued and
outstanding. All issued and outstanding shares of capital stock of IVP are
validly issued, fully paid and nonassessable. Except as described in Section
3.02 of the Disclosure Schedule, there are no outstanding (a) securities
convertible into or exchangeable for IVP capital stock; (b) options, warrants or
other rights to purchase or subscribe to capital stock of IVP or securities
convertible into or exchangeable for capital stock of IVP; or (c) contracts,
commitments, agreements, understandings or arrangements of any kind relating to
the issuance of any capital stock of IVP, any such convertible or exchangeable
securities or any such options, warrants or rights.
3.03. Subsidiaries and Affiliates. Except as described in its most
recent 10-QSB filing, IVP does not own, directly or indirectly, any capital
stock or other equity securities of any corporation or have any direct or
indirect equity or ownership interest in any business.
3.04. Authorization, Etc. IVP has full corporate power and authority
to enter into this Agreement and to carry out the transactions contemplated
hereby. The Board of Directors of IVP has taken all action required by law,
IVP's Articles of Incorporation, its By-Laws or otherwise to be taken by them to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, and, this Agreement is a valid and binding
agreement of IVP enforceable in accordance with its terms, except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights,
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefore may be brought, and (iii)
enforceability of Section 2.04(j) of this Agreement may be subject to
limitations of public policy under Federal and State securities laws.
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3.05. No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
violate any provision of the Articles of Incorporation or By-Laws of IVP, or,
violate, or be in conflict with, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required by, or
cause the acceleration of the maturity of any debt or obligation pursuant to, or
result in the creation or imposition of any security interest, lien or other
encumbrance upon any property or assets of IVP under, any agreement or
commitment to which IVP is a party or by which IVP is bound, or to which the
property of IVP is subject, or violate any statute or law or any judgment,
decree, order, regulation or rule of any court or governmental authority.
3.06. SEC Reports. The Annual Report of IVP on Form 10-KSB for the
year ended December 31, 2003 filed under the Securities Exchange Act, and all
other reports and Proxy Statements required to be filed by IVP under the
Securities Exchange Act since April 24, 2000 (the date upon which IVP became
subject to the reporting requirements of the Securities Exchange Act), have been
duly by IVP and were in compliance with the requirements of their respective
reports forms.
3.07. Financial Statements. IVP has heretofore delivered to
TWINCENTRIC: (i) a consolidated balance sheet of IVP as at December 31, 2003;
and consolidated statements of income, changes in stockholders' equity and
changes in financial position for each of the years then ended, all certified by
▇▇▇▇▇▇▇▇ & Company, P.A., independent certified public accountants, whose
reports thereon are included therein. Such consolidated balance sheets and the
notes thereto are true, complete and accurate and fairly present the
consolidated assets, liabilities and financial condition of IVP and the IVP
Subsidiary at the respective dates thereof, and such consolidated statements of
income, changes in stockholders' equity and changes in financial position and
the notes thereto are true, complete and accurate and fairly present the results
of operations for the periods therein referred to; all in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved except, in the case of unaudited statements, for normally
recurring year-end adjustments, which adjustments will not be material either
individually or in the aggregate.
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3.08. Interim Operations. Since the date of the Balance Sheet, the
business of IVP has been conducted only in the ordinary and usual course
consistent with past practice. Since the date of the Balance Sheet, there have
not been any material adverse changes in the financial condition, assets or
results of operations of IVP or the IVP Subsidiary. Since such date, such assets
have not been affected in any way as a result of flood, fire, explosion or other
casualty (whether or not covered by insurance). IVP is not aware of any
circumstances which may cause it to suffer any material adverse change in its
business, operations or prospects.
3.09. Patents, Trademarks, Trade Names, Etc. As more fully described
in its most recent 10KSB, IVP is licensed to use all technology, know-how and
processes used in or necessary for the conduct of the business as heretofore
conducted.
3.10. Leases. IVP is not party to any lease for real or personal
property except as described in its most recent 10-KSB.
3.11. Orders and Returns. As of the date of this Agreement, IVP does
not have any commitments or unfulfilled orders for the sale of merchandise. As
of the date of this Agreement, there are no claims against IVP to return any
merchandise.
3.12. Agreements in Full Force and Effect. All contracts,
agreements, policies and licenses referred to in the Disclosure Schedule are
valid and in full force and effect, and true copies thereof have been heretofore
made available to TWINCENTRIC and the shareholder.
3.13. Litigation. There is no action, suit, inquiry, proceeding or
investigation by or before any court or governmental or other regulatory or
administrative agency or commission pending threatened against or involving IVP
or the IVP Subsidiary, or which questions or challenges the validity of this
Agreement or any action taken or to be taken by IVP pursuant to this Agreement
or in connection with the transactions contemplated hereby. Neither IVP is
subject to any judgment, order or decree entered in any lawsuit or proceeding
which may have an adverse effect on its business practices or on its ability to
acquire any property or conduct its business in any area.
15
3.14. Disclosure. No representations or warranties by IVP in this
Agreement and no statement contained in any document (including, without
limitation, financial statements and the Disclosure Schedule), certificate, or
other writing furnished or to be furnished by IVP to TWINCENTRIC or the
shareholder or any of its representatives pursuant to the provisions hereof or
in connection with the transactions contemplated hereby, contains or will
contain any untrue statement of 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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TWINCENTRIC AND THE SHAREHOLDER
TWINCENTRIC and the Shareholder, jointly and severally, represent
and warrant to IVP as follows:
4.01. Corporate Organization; Etc. TWINCENTRIC is a corporation duly
organized, validly existing and in good standing under the laws of the United
Kingdom respectively. All the issued and outstanding shares of capital stock of
TWINCENTRIC (i) has been duly authorized by all necessary corporation action,
(ii) are validly issued, fully paid and nonassessable and are owned by the
Shareholder.
4.02. Authorization; Etc. TWINCENTRIC and the Shareholder have full
corporate power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby. The Board of Directors of TWINCENTRIC have
taken all action required by law, their Articles of Incorporation and By-Laws or
otherwise to authorize the execution and delivery of this Agreement and the
transactions contemplated hereby, and this Agreement is a valid and binding
agreement of TWINCENTRIC enforceable in accordance with its terms except that
(i) such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights, (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought, and
(iii) enforceability of Section 2.04(j) of this Agreement may be subject to
limitations of public policy under Federal, Provincial and State securities
laws.
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4.03. No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
violate any provisions of the Articles of Incorporation or By-Laws of
TWINCENTRIC , or violate, or be in conflict with, or constitute a default under,
or cause the acceleration of the maturity of any debt or obligation pursuant to,
any agreement or commitment to which TWINCENTRIC is a party or by which
TWINCENTRIC is bound, or violate any statute or law or any judgment, decree,
order, regulation or rule of any court or governmental authority.
4.04 Maximum Liability. Notwithstanding any other terms of this
Agreement relating to the liability by Twincentric or the Shareholder the
aggregate liability of the Shareholder arising under or in connection with this
Agreement shall not exceed Three Hundred and Fifty Thousand United States
dollars.
4.05. Ownership of TWINCENTRIC Shares. Each of the Shareholder
represents and warrants to IVP that he is the sole lawful, beneficial, and
record owner of the shares of TWINCENTRIC and Stock listed on Schedule E hereto,
free of any liens, charges, security interests or encumbrances, and has good and
marketable title to such shares.
4.06. Investment Intent as to the Shares. Each of the Shareholder is
acquiring the Shares for his own account, for investment and not with a view to,
or for sale in connection with, any distribution of such shares or any part
thereof, without prejudice, however, to such Shareholder's right, subject to the
provisions of this Agreement, at all times to sell or otherwise dispose of all
or any part of the Shares pursuant to an effective registration statement under
the Securities Act and in compliance with applicable state securities laws or
under an exemption from such registration.
4.07. No Registration of Shares. Each of the Shareholder
acknowledges that the Shares have not been registered under the Securities Act,
and that, except as provided in Article II hereof, IVP is under no obligation to
register under the Securities Act the shares of IVP Stock being issued to
TWINCENTRIC or the Shareholder hereunder.
4.08. Power and Authority. Each of the Shareholder has full right,
power, and authority to execute and deliver, and to perform his obligations
under, this Agreement and that this Agreement has been duly executed and
delivered by him and constitutes his valid and binding obligation.
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4.09. Further Assurances. Each Shareholder shall take any further
action or execute such further instruments as may be necessary to effectuate the
terms of this Agreement.
ARTICLE V
COVENANTS OF IVP
IVP hereby covenants and agrees with TWINCENTRIC:
5.01. Full Access. IVP shall afford to TWINCENTRIC, its counsel,
accountants and other representatives full access to the plants, offices,
warehouses, properties, books and records of IVP in order that TWINCENTRIC may
have full opportunity to make such investigations as it shall desire to make of
the affairs of IVP.
5.02. Covenant to Satisfy Conditions. IVP will use its best efforts
to insure that the conditions set forth in Article VI hereof are satisfied,
insofar as such matters are within the control of any of them.
5.03. Certificates. At the Closing, IVP will furnish TWINCENTRIC
with such certificates of its officers and others to evidence compliance with
the covenants set forth in this Article V as may be reasonably requested by
TWINCENTRIC.
ARTICLE VI
CONDITIONS TO TWINCENTRIC'S AND THE SHAREHOLDER' OBLIGATIONS
Each and every obligation of TWINCENTRIC under this Agreement to be
performed on or before the Closing shall be subject to the satisfaction, on or
before the Closing, of each of the following conditions, unless waived in
writing by TWINCENTRIC:
6.01. Representations and Warranties True. The representations and
warranties of IVP contained herein shall be in all material respects true and
accurate as of the date when made and at and as of the Closing as though such
representations and warranties were made at and as of such date, except for
changes expressly permitted or contemplated by the terms of this Agreement.
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6.02. Performance. IVP shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with by them on or prior to the Closing.
6.03. No Governmental Proceeding or Litigation. No suit, action,
investigation, inquiry or other proceeding by any governmental body or other
person or legal or administrative proceeding shall have been instituted or
threatened which questions the validity or legality of the transactions
contemplated hereby.
6.04. Certificates. IVP shall have furnished TWINCENTRIC with such
certificates of their officers and others to evidence compliance with the
conditions set forth in this Article VI as may be reasonably requested by
TWINCENTRIC.
ARTICLE VII
CONDUCT OF IVP'S BUSINESS PENDING THE CLOSING
Pending the Closing, and except as otherwise expressly consented to or
approved by TWINCENTRIC in writing:
7.01. Regular Course of Business. IVP will carry on its business
diligently and substantially in the same manner as heretofore conducted, and IVP
shall not institute any new methods of manufacture, purchase, sale, lease,
management, accounting or operation or engage in any transaction or activity,
enter into any agreement or make any commitment, except in the ordinary course
of business and consistent with past practice.
7.02. Amendments. Except as otherwise described in and required by Section
6.04 hereof, IVP shall not change or amend its Articles of Incorporation or
By-Laws.
7.03. Capital Changes; Dividends, Redemptions. IVP will not issue or sell
any shares of its capital stock or other securities except in connection with a
financing transaction which results in IVP receiving working capital, acquire
directly or indirectly, by redemption or otherwise, any such capital stock,
reclassify or split-up any such capital stock, declare or pay any dividends
thereon in cash, securities or other property or make any other distribution
with respect thereto, or grant or enter into any options, warrants, calls or
commitments of any kind with respect thereto.
19
7.04. Compliance with Laws. IVP shall duly comply with all laws applicable
to it and its properties, operations, business and employees.
7.05. SEC Reports. IVP will duly file all reports required to be filed by
it with the SEC pursuant to the Securities Exchange Act.
ARTICLE VIII
TERMINATION AND ABANDONMENT
8.01. Methods of Termination. The transactions contemplated herein may be
terminated and/or abandoned at any time but not later than the Closing:
(a) By mutual consent of the respective Boards of Directors of IVP
and TWINCENTRIC; or
(b) By the Board of Directors of TWINCENTRIC on or after June 18,
2004 , or such later date as may be established pursuant to Section 1.03 hereof,
if any of the conditions provided for in Article VI of this Agreement shall not
have been met or waived in writing by TWINCENTRIC prior to such date.
8.02. Procedure Upon Termination. In the event of termination and
abandonment of this Agreement pursuant to Section 8.01 hereof, written notice
thereof shall forthwith be given to the other party and the transactions
contemplated by this Agreement shall be terminated and/or abandoned, without
further action by IVP or TWINCENTRIC. If the transactions contemplated by this
Agreement are terminated and/or abandoned as provided herein:
(a) Each party will redeliver all documents, work papers and other
material of any other party relating to the transactions contemplated hereby,
whether so obtained before or after the execution hereof, to the party
furnishing the same;
(b) All confidential information received by any party hereto with
respect to the business of any other party or its subsidiaries shall be treated
in accordance with Section 2.06 hereof; and
(c) No party hereto shall have any liability or further obligation
to any other party to this Agreement except as stated in subparagraphs (a) and
(b) of this Section 8.02.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
9.01. Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented by written agreement of the
respective Boards of Directors of IVP and TWINCENTRIC or by their respective
officers authorized by such Boards of Directors at any time prior to the Closing
with respect to any of the terms contained herein.
9.02. Waiver of Compliance. Any failure of IVP, on the one hand, or
TWINCENTRIC , on the other, to comply with any obligation, covenant, agreement
or condition herein may be expressly waived in writing by the Chairman of the
Board. President or a Vice President of IVP or TWINCENTRIC , respectively, but
such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
9.03. Expenses; Transfer Taxes, Etc Whether or not the transaction
contemplated by this Agreement shall be consummated, IVP agrees that all fees
and expenses incurred by it in connection with this Agreement shall be borne by
it and TWINCENTRIC agrees that all fees and expenses incurred by it in
connection with this Agreement shall be borne by it, including, without
limitation as to IVP or TWINCENTRIC, all fees of counsel and accountants. IVP
agrees that it will pay all sales, transfer or other taxes which may be payable
in connection with the transactions contemplated by this Agreement.
9.04. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or mailed, certified or registered mail
with postage prepaid:
(a) If to IVP, to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ IVP
Technology Corporation
d.b.a. ActiveCore Technologies, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
21
or to such other person or address as IVP shall furnish to TWINCENTRIC in
writing.
(b) If to TWINCENTRIC or the Shareholder, to:
▇▇. ▇▇▇▇ ▇▇▇▇▇▇
6 A ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
or to such other person or address as TWINCENTRIC shall furnish to IVP in
writing.
9.05. Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties.
9.06. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the England without regard to
the principles of conflicts of law thereof. Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the English courts sitting in the
City of London, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.
9.07. Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
22
9.08. Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state or local statute or law
shall be deemed to also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation. The parties intend that each representation,
warranty or covenant contained herein shall have independent significance. If
any party has breached any representation, warranty or covenant herein in any
respect, the fact that there exists another representation, warranty or covenant
relating to the same subject matter (regardless of the relative levels of
specificity) which the party has not breached shall not detract from or mitigate
the fact that the party is in breach of the first representation, warranty or
covenant.
9.09. Severability. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affected or impaired thereby and the parties will attempt to agree
upon a valid and enforceable provision which shall be a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
9.10. Headings. The headings of the Sections and Articles of this
Agreement are inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this Agreement.
9.11. Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or corporation other than the parties hereto
and their successors or assigns, any rights or remedies under or by reason of
this Agreement.
9.12. Entire Agreement. This Agreement, including the Exhibits hereto, the
Disclosure Schedule and the other documents and certificates delivered pursuant
to the terms hereof, set forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and supersede
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be affixed hereto, all as
of the day and year first above written.
IVP TECHNOLOGY CORPORATION ▇.▇▇.
ActiveCore Technologies, Inc.
[Seal] By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Title:
Attest:
-------------------------
Title:
Twincentric Limited
------------------------- By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title:
-------------------------
SHAREHOLDER
--------------------------
▇▇▇▇ ▇▇▇▇▇▇
24