AGREEMENT TO EXCHANGE COMMON STOCK
BETWEEN
▇▇▇▇▇▇ INTERNATIONAL, INC.
AND
NORTH AMERICAN SOFTWARE ASSOCIATES, LIMITED
INDEX
ARTICLE I - EXCHANGE OF SECURITIES ............................
ARTICLE II - REPRESENTATIONS AND WARRANTIES ...................
2.0l - Organization .......................................
2.02 - Capital ............................................
2.03 - Directors and Officers........
2.04 - Financial Statements ...............................
2.05 - Absence of Changes .................................
2.06 - Absence of Undisclosed Liabilities .................
2.07 - Tax Returns ........................................
2.08 - Investigation of Financial Condition................
2.09 - Trade Names and Rights .............................
2.l0 - Contracts and Leases ...............................
2.ll - Insurance Policies .................................
2.l2 - Compliance with Laws ...............................
2.l3 - Litigation .........................................
2.l4 - Ability to Carry Out Obligations ...................
2.l5 - Full Disclosure ....................................
2.l6 - Assets .............................................
2A - Organization .........................................
2B - Directors and Officers' Compensation; Banks ..........
2C - Capital ..............................................
2D - Financial Statements .................................
2E - Absence of Changes ...................................
2F - Absence of Undisclosed Liabilities ...................
2G - Tax Returns ..........................................
2H - Investigation of Financial Condition..........
2I - Trade Names and Rights ...............................
2J - Contracts and Leases .................................
2K - Insurance Policies ...................................
2L - Compliance with Laws .................................
2M - Litigation ...........................................
2N - Ability to Carry Out Obligations ..............................
2O - Full Disclosure ......................................
2P - Assets ...............................................
ARTICLE III - SHAREHOLDER REPRESENTATIONS .....................
ARTICLE IV - OBLIGATIONS BEFORE CLOSING .......................
4.0l - Investigative Rights ...............................
4.02 - Conduct of Business ................................
ARTICLE V - CONDITIONS PRECEDENT TO PERFORMANCE BY ▇▇▇▇▇▇
5.0l - Conditions .........................................
5.02 - Accuracy of Representations ........................
5.03 - Performance.........................................
5.04 - Absence of Litigation ..............................
ARTICLE VI - CONDITIONS PRECEDENT TO PERFORMANCE BY NAS.
6.0l - Conditions .........................................
6.02 - Accuracy of Representations ........................
6.03 - Performance ........................................
6.04 - Absence of Litigation ..............................
6.05 - Other ..............................................
ARTICLE VII - CLOSING .........................................
7.0l - Closing ............................................
7.02 - Exchange of Shares .....................
7.03 - No Fractional Shares ...............................
7.04 - Appointment of Directors ...........................
ARTICLE VIII - REMEDIES .......................................
8.0l - Arbitration ........................................
8.02 - Costs ..............................................
8.03 - Termination ........................................
ARTICLE IX - MISCELLANEOUS ....................................
9.0l - Captions and Headings ..............................
9.02 - No Oral Change .....................................
9.03 - Non-Waiver .........................................
9.04 - Time of Essence ...................................
9.05 - Entire Agreement ..................................
9.06 - State Law .........................................
9.07 - Counterparts ......................................
9.08 - Notices ...........................................
9.09 - Binding Effect ....................................
9.l0 - Effect of Closing .................................
9.ll - Mutual Cooperation ................................
9.12 - Expenses............................................
Exhibit A - Officers and Directors(NAS)
Exhibit B - Financial Statements (NAS) ...........................
Exhibit C - Not Used..........
Exhibit D - Not Used.................
Exhibit E - Not Used
Exhibit F - Not Used
Exhibit G - Officers, Directors, Bank Accounts, Safe Deposit Boxes, Powers
of Attorney (▇▇▇▇▇▇).....................................
Exhibit H - Financial Statements - Changes in
Financial Condition (▇▇▇▇▇▇)
Exhibit I - Trademarks, Trade Names and Copyrights (▇▇▇▇▇▇)
Exhibit J - Material Contracts (▇▇▇▇▇▇)
Exhibit K- Insurance Policies (▇▇▇▇▇▇)
Exhibit L - Litigation (▇▇▇▇▇▇)
AGREEMENT TO EXCHANGE COMMON STOCK
This AGREEMENT, made this 14th day of December, 1999, by and between
▇▇▇▇▇▇ International, Inc. ("▇▇▇▇▇▇"), North American Software Associates,
Limited ("NAS") and the shareholders of NAS (as to Article I and Article III
only) is made for the purpose of setting forth the terms and conditions upon
which ▇▇▇▇▇▇ will acquire all of the issued and outstanding common stock of NAS
in exchange for shares of ▇▇▇▇▇▇'▇ common stock.
In consideration of the mutual promises, covenants, and representations
contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
EXCHANGE OF SECURITIES
Subject to the terms and conditions of this Agreement, ▇▇▇▇▇▇ agrees to
issue, and the shareholders of NAS agree to accept 76,801,017 shares of the
common stock of ▇▇▇▇▇▇ in consideration for all of the issued and outstanding
common stock of NAS. Immediately prior to the closing of this transaction, the
total issued capital of ▇▇▇▇▇▇ will not exceed 7,515,705 shares of Common Stock
and 80,000 shares of preferred stock. It is understood that shares will be
issued to the shareholders of NAS up to the limits of ▇▇▇▇▇▇'▇ authorized
capital. When ▇▇▇▇▇▇'▇ authorized capital is increased, the additional shares
called for by this Agreement will be issued to the shareholders of ▇▇▇▇▇▇ on a
pro rata basis.
As soon as practicable after the Closing of this Agreement, ▇▇▇▇▇▇
will offer to those persons who were shareholders of ▇▇▇▇▇▇ immediately prior to
the Closing, by means of a registration statement filed with the Securities and
Exchange Commission, the right to purchase .26 of a share for each share held by
such person at a price of $0.25 per share at any time prior to the expiration of
one year from the effective date of the registration statement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
NAS represents and warrants to ▇▇▇▇▇▇ that:
2.0l Organization. NAS is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good standing
in each of the states where its business requires qualification.
2.02 Capital. The authorized capital stock of NAS consists of
50,000,000 shares of common stock, $0.001 par value, of which 6,142,849 shares
will be issued and outstanding at closing. NAS is authorized to issue 1,000,000
shares of preferred stock. No shares of preferred stock will be outstanding
prior to closing. At closing, there will be no outstanding subscriptions,
options, rights, warrants, convertible securities, or other agreements or
commitments obligating NAS to issue or to transfer from treasury any additional
shares of its capital stock of any class, except for options which allow
shareholders of NAS to purchase up to an additional 2,305,648 shares of the
common stock of NAS.
2.03 Directors and Officers. Exhibit A to this Agreement contains the
names, and titles of all directors and officers of NAS.
2.04 Financial Statements. Exhibit B to this Agreement sets forth the
balance sheet of NAS as of September 30, 1999, and the related statements of
income for the period then ended. The financial statements have been prepared in
accordance with generally accepted accounting principles consistently followed
by NAS throughout the periods indicated, and fairly present the financial
position of NAS as of the dates of the balance sheet included in the financial
statements, and the results of its operations for the periods indicated.
2.05 Absence of Changes. Since September 30,1999, there has not been
any change in the financial condition or operations of NAS, except changes in
the ordinary course of business, which changes have not in the aggregate been
materially adverse.
2.06 Absence of Undisclosed Liabilities. NAS did not as of September
30, 1999 have any debt, liability, or obligation of any nature, whether accrued,
absolute, contingent, or otherwise, and whether due or to become due, that is
not reflected on Exhibit B.
2.07 Tax Returns. Within the times and in the manner prescribed by law,
NAS has filed all federal, state, and local tax returns required by law and has
paid all taxes, assessments, and penalties due and payable. No federal income
tax returns of NAS have been audited by the Internal Revenue Service. The
provision for taxes, if any, reflected in NAS's balance sheet as of September
30, 1999, is adequate for any and all federal, state, county, and local taxes
for the period ending on the date of that balance sheet and for all prior
periods, whether or not disputed. There are no present disputes as to taxes of
any nature payable by NAS.
2.08 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, ▇▇▇▇▇▇
shall have the opportunity to meet with NAS's accountants and attorneys to
discuss the financial condition of NAS. NAS shall make available to ▇▇▇▇▇▇ the
books and records of NAS. The minutes of NAS are a complete and accurate record
of all meetings of the shareholders and directors of NAS and accurately reflect
all actions taken at such meetings. The signatures of the directors and/or
officers on such minutes are the valid signatures of NAS's directors and/or
officers who were duly elected or appointed on the dates that the minutes were
signed by such persons. The stock book of NAS contains an accurate record of all
transactions with respect to the capital stock of NAS.
2.09 Trade Names and Rights. No person other than NAS owns any
trademark, trademark registration or application, service ▇▇▇▇, trade name,
copyright, or copyright registration or application the use of which is
necessary or contemplated in connection with the operation of NAS's business.
2.l0 Contracts and Leases. NAS is not in default under any agreements
or lease to which it is a party.
2.ll Insurance Policies. NAS's business and property are adequately
coverd by insurance policies that are in full force and effect.
2.l2 Compliance with Laws. NAS has complied with, and is not in
violation of, applicable federal, state, or local statutes, laws, and
regulations affecting its properties or the operation of its business, including
but not limited to applicable federal and state securities laws. NAS does not
have any employee benefit plan which is subject to the provisions of the
Employee Retirement Income Security Act of 1974.
2.l3 Litigation. NAS is in an arbitration proceeding with a company
that claims NAS owes such person approximately $200,000 for software sold to
NAS. With the exception of the foregoing arbitration proceeding, NAS is not a
party to any suit, action, arbitration, or legal, administrative, or other
proceeding, or governmental investigation pending or, to the best knowledge of
NAS threatened, against or affecting NAS or its business, assets, or financial
condition. NAS is not in default with respect to any order, writ, injunction, or
decree of any federal, state, local, or foreign court, department, agency, or
instrumentality. NAS is not engaged in any legal action to recover moneys due to
NAS or damages sustained by NAS.
2.14 Ability to Carry Out Obligations. Subject to the approval of this
agreement by the shareholders of NAS, NAS has the right, power, and authority to
enter into, and perform its obligations under, this Agreement. The execution and
delivery of this Agreement by NAS and the performance by NAS of its obligations
hereunder will not cause, constitute, or conflict with or result in (a) any
breach or violation or any of the provisions of or constitute a default under
any license, indenture, mortgage, charter, instrument, articles of
incorporation, by-law, or other agreement or instrument to which NAS is a party,
or by which it may be bound, nor will any consents or authorizations of any
party other than those hereto be required, (b) an event that would permit any
party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of NAS, or (c) an event that
would result in the creation or imposition or any lien, charge, or encumbrance
on any asset of NAS.
2.15 Full Disclosure. None of representations and warranties made by
NAS, or in any certificate or memorandum furnished or to be furnished by NAS, or
on its behalf, contains or will contain any untrue statement of material fact,
or omit any material fact the omission of which would be misleading. NAS has
disclosed to ▇▇▇▇▇▇ all reasonably foreseeable contingencies which, if such
contingencies transpired, would have a material adverse effect on NAS's
business.
2.l6 Assets. NAS has good and marketable title to all of its property.
▇▇▇▇▇▇ represents and warrants to NAS that:
2A. Organization. ▇▇▇▇▇▇ is a corporation duly organized, validly
existing, and in good standing under the laws of Colorado, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good standing
in each of the states where its business requires qualification.
2B. Directors and Officers' Compensation; Banks. Exhibit G to this
Agreement contains: (i) the names, addresses, and titles of all directors and
officers of ▇▇▇▇▇▇ and all persons whose compensation from ▇▇▇▇▇▇ as of the date
of this Agreement will equal or its expected to equal or exceed, at an annual
rate, the sum of $5,000; (ii) the name and address of each bank with which
▇▇▇▇▇▇ has an account or safety deposit box, the identification number thereof,
and the names of all persons who are authorized to draw thereon or have access
thereto; and (iii) the names of all persons who have a power of attorney from
▇▇▇▇▇▇ and a summary of the terms thereof.
2C. Capital. The authorized capital stock of ▇▇▇▇▇▇ consists of
30,000,000 shares of common stock, no par value and 400,000 shares of preferred
stock. At closing no more than 7,515,705 shares of common stock and 80,000
shares of preferred stock will be issued and outstanding. All of the shares are
validly issued, fully paid, and non-assessable. At closing, there will be no
outstanding subscriptions, options, rights, warrants, convertible securities, or
other agreements or commitments obligating ▇▇▇▇▇▇ to issue or to transfer from
treasury any additional shares of its capital stock of any class other than
80,000 shares of common stock which are issuable upon the conversion of ▇▇▇▇▇▇'▇
Series I preferred stock. There are no accrued but unpaid dividends relating to
any of ▇▇▇▇▇▇'▇ common or preferred stock.
2D. Financial Statements. Exhibit H to this Agreement sets forth
balance sheets of ▇▇▇▇▇▇ as of September 30,1999, and the related statements of
income and retained earnings for the period then ended. The financial statements
have been prepared in accordance with generally accepted accounting principles
consistently followed by ▇▇▇▇▇▇ throughout the periods indicated, and fairly
present the financial position of ▇▇▇▇▇▇ as of the dates of the balance sheets
included in the financial statements, and the results of its operations for the
periods indicated.
2E. Absence of Changes. Since September 30,1999, there has not been any
change in the financial condition or operations of ▇▇▇▇▇▇, except (i) changes in
the ordinary course of business, which changes have not in the aggregate been
materially adverse, and (ii) changes disclosed on Exhibit H.
2F. Absence of Undisclosed Liabilities. ▇▇▇▇▇▇ did not as of September
30,1999 have any debt, liability, or obligation of any nature, whether accrued,
absolute, contingent, or otherwise, and whether due or to become due, that is
not reflected on Exhibit H.
2G. Tax Returns. During the past five years no federal income tax
returns of ▇▇▇▇▇▇ have been audited by the Internal Revenue Service. The
provision for taxes, if any, reflected in ▇▇▇▇▇▇'▇ balance sheet as of September
30,1999, is adequate for any and all federal, state, county, and local taxes for
the period ending on the date of that balance sheet and for all prior periods,
whether or not disputed. There are no present disputes as to taxes of any nature
payable by ▇▇▇▇▇▇.
2H. Investigation of Financial Condition of ▇▇▇▇▇▇. Without in any
manner reducing or otherwise mitigating the representations contained herein,
NAS shall have the opportunity to meet with ▇▇▇▇▇▇'▇ accountants and attorneys
to discuss the financial condition of ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall make available to NAS
the books and records of ▇▇▇▇▇▇. The minutes of ▇▇▇▇▇▇ are a complete and
accurate record of all meetings of the shareholders and directors of ▇▇▇▇▇▇ and
accurately reflect all actions taken at such meetings. The signatures of the
directors and/or officers on such minutes are the valid signatures of ▇▇▇▇▇▇'▇
directors and/or officers who were duly elected or appointed on the dates that
the minutes were signed by such persons.
2I. Trade Names and Rights. Exhibit I attached hereto and made a part
hereof lists all trademarks, trademark registrations or applications, trade
names, service marks, copyrights, copyright registrations or applications which
are owned by ▇▇▇▇▇▇. No person, other than ▇▇▇▇▇▇, will own any trademark,
trademark registration or application, service ▇▇▇▇, trade name, copyright, or
copyright registration or application the use of which is necessary or
contemplated in connection with the operation of the business of ▇▇▇▇▇▇, as such
business is to be conducted after the closing of this transaction.
2J. Contracts and Leases. Exhibit J attached hereto and made a part
hereof contains a summary of provisions of all material contracts, leases, and
other agreements of ▇▇▇▇▇▇ presently in existence or which have been agreed to
by ▇▇▇▇▇▇. ▇▇▇▇▇▇ is not in default under any of these agreements or leases.
2K. Insurance Policies. Exhibit K to this Agreement is a description of
all insurance policies held by ▇▇▇▇▇▇ concerning its business and properties.
All these policies are in the respective principal amounts set forth in Exhibit
K.
2L. Compliance with Laws. ▇▇▇▇▇▇ has complied with, and is not in
violation of, applicable federal, state, or local statutes, laws, and
regulations affecting its properties or the operation of its business, including
but not limited to federal and state securities laws. ▇▇▇▇▇▇ does not have any
employee benefit plan which is subject to the provisions of the Employee
Retirement Income Security Act of 1974. ▇▇▇▇▇▇ has filed with the Securities and
Exchange Commission ("SEC") and any applicable state securities agency, all
required forms, reports, schedules, statements and other documents
(collectively, the "SEC Documents"). The SEC Documents filed by ▇▇▇▇▇▇,
including without limitation any financial statements or schedules included
therein, at the time filed, (a) did not 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 light of the circumstances
under which they were made, not misleading; and (b) complied in all material
respects with applicable federal and state securities laws, as the case may be,
and the rules and regulations of the SEC and any applicable state securities
agency. The financial statements of ▇▇▇▇▇▇ included in the SEC Documents
complied as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, were prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the period involved (except as
may be indicated in the notes thereto) and fairly presented (subject, in the
case of the unaudited statements, to normal year-end audit adjustments) the
financial position of ▇▇▇▇▇▇ as of the dates thereof and the results of its
operations and cash flows for the periods then ended.
2M. Litigation. Other than as disclosed on Exhibit L, ▇▇▇▇▇▇ is not a
party to any suit, action, arbitration, or legal, administrative, or other
proceeding, or governmental investigation pending or, to the best knowledge of
▇▇▇▇▇▇ threatened, against or affecting ▇▇▇▇▇▇ or its business, assets, or
financial condition. ▇▇▇▇▇▇ is not in default with respect to any order, writ,
injunction, or decree of any federal, state, local, or foreign court,
department, agency, or instrumentality. ▇▇▇▇▇▇ is not engaged in any legal
action to recover moneys due to it or damages sustained by it other than as
disclosed on Exhibit L.
2N. Ability to Carry Out Obligations. ▇▇▇▇▇▇ has the right, power, and
authority to enter into, and perform its obligations under, this Agreement. The
execution and delivery of this Agreement by ▇▇▇▇▇▇ and the performance by ▇▇▇▇▇▇
of its obligations hereunder will not cause, constitute, or conflict with or
result in (a) any breach or violation or any of the provisions of or constitute
a default under any license, indenture, mortgage, charter, instrument, articles
of incorporation, by-law, or other agreement or instrument to which ▇▇▇▇▇▇ is a
party, or by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of ▇▇▇▇▇▇, or (c) an event that
would result in the creation or imposition or any lien, charge, or encumbrance
on any asset of ▇▇▇▇▇▇.
2O. Full Disclosure. None of representations and warranties made by
▇▇▇▇▇▇, or in any certificate or memorandum furnished or to be furnished by
▇▇▇▇▇▇, or on its behalf, contains or will contain any untrue statement of
material fact, or omit any material fact the omission of which would be
misleading. ▇▇▇▇▇▇ has disclosed to NAS all reasonably foreseeable contingencies
which, if such contingencies transpired, would have a material adverse effect on
▇▇▇▇▇▇.
2P. Assets. ▇▇▇▇▇▇ has good and marketable title to all of its property.
ARTICLE III
SHAREHOLDER REPRESENTATIONS
Each shareholder of NAS represents to ▇▇▇▇▇▇ that he has the right,
power, and authority to enter into, and perform his obligations under this
Agreement. The execution and delivery of this Agreement by such shareholder and
the delivery by such shareholder of his shares in NAS pursuant to Article I will
not cause, constitute, or conflict with or result in any breach or violation or
any of the provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, or agreement to which he is a party, or by which
he may be bound, nor will any consents or authorizations of any party be
required. Each shareholder of NAS represents and warrants to ▇▇▇▇▇▇ that the
shares of NAS that such shareholder will deliver at closing will be free of any
liens or encumbrances.
Each shareholder of NAS understands that the shares being acquired from
▇▇▇▇▇▇ represent restricted securities as that term is defined in Rule l44 of
the Securities and Exchange Commission. ARTICLE IV
OBLIGATIONS BEFORE CLOSING
4.0l Investigative Rights. From the date of this Agreement until the
date of closing, each party shall provide to the other party, and such other
party's counsel, accountants, auditors, and other authorized representatives,
full access during normal business hours to all of each party's properties,
books, contracts, commitments, records and correspondence and communications
with regulatory agencies for the purpose of examining the same. Each party shall
furnish the other party with all information concerning each party's affairs as
the other party may reasonably request.
4.02 Conduct of Business. Prior to the closing, and except as
contemplated by this Agreement, each party shall conduct its business in the
normal course, and shall not sell, pledge, or assign any assets, without the
prior written approval of the other party, except in the regular course of
business. Except as contemplated by this Agreement, neither party to this
Agreement shall amend its Articles of Incorporation or By-laws, declare
dividends, redeem or sell stock or other securities, incur additional or
newly-funded material liabilities, acquire or dispose of fixed assets, change
senior management, change employment terms, enter into any material or long-term
contract, guarantee obligations of any third party, settle or discharge any
balance sheet receivable for less than its stated amount, pay more on any
liability than its stated amount, or enter into any other transaction other than
in the regular course of business.
ARTICLE V
CONDITIONS PRECEDENT TO PERFORMANCE BY
▇▇▇▇▇▇
5.01 Conditions. ▇▇▇▇▇▇'▇ obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article ▇. ▇▇▇▇▇▇ may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by ▇▇▇▇▇▇ of any other condition of or any of ▇▇▇▇▇▇'▇
other rights or remedies, at law or in equity, if NAS shall be in default of any
of its representations, warranties, or covenants under this agreement.
5.02 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by NAS in this Agreement or in any
written statement that shall be delivered to ▇▇▇▇▇▇ by NAS under this Agreement
shall be true on and as of the closing date as though made at those times.
5.03 Performance. NAS shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the closing. NAS shall have
obtained all necessary consents and approvals necessary to consummate the
transactions contemplated hereby.
5.04 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this agreement or to its consummation, shall have been
instituted or threatened on or before the closing.
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE BY NAS
6.01 Conditions. NAS' obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of the conditions set forth in this
Article VI. NAS may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by NAS of any other condition of or any of NAS' other
rights or remedies, at law or in equity, if ▇▇▇▇▇▇ shall be in default of any of
its representations, warranties, or covenants under this agreement.
6.02 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by ▇▇▇▇▇▇ in this Agreement or in
any written statement that shall be delivered to NAS by ▇▇▇▇▇▇ under this
Agreement shall be true on and as of the closing date as though made at those
times.
6.03 Performance. ▇▇▇▇▇▇ shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the closing. ▇▇▇▇▇▇ shall have
obtained all necessary consents and approvals necessary to consummate the
transactions contemplated hereby.
6.04 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this agreement or to its consummation, shall have been
instituted or threatened on or before the closing.
6.05 Other. At the time of closing, ▇▇▇▇▇▇ will not have any
liabilities except for a $10,000 note payable to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Prior to the
closing, ▇▇▇▇▇▇ ▇▇▇▇▇▇ will have executed agreements, to be effective at the
closing and in form and substance satisfactory to NAS, pertaining to (i) the
sale of 1,100,000 shares of common stock of ▇▇▇▇▇▇; and (ii) restrictions on the
resale of any additional shares of the common stock of ▇▇▇▇▇▇ which he will own
or have the right to acquire.
ARTICLE VI
CLOSING
7.0l Closing. The closing of this transaction shall be held at the
offices of ▇▇▇▇ & Trinen. Unless the closing of this transaction takes place
before December 15, 1999, then either party may terminate this Agreement without
liability to the other party, except as otherwise provided in Section 9.12. At
the closing, the following documents, in form reasonably acceptable to counsel
to the parties or as set forth herein, shall be delivered:
By NAS:
A. An officer's certificate, dated the closing date, that all
representations, warranties, covenants, and conditions set forth in this
Agreement on behalf of NAS are true and correct as of, or have been fully
performed and complied with by, the closing date.
By ▇▇▇▇▇▇:
A. An officer's certificate, dated the closing date, that all representations,
warranties, covenants, and conditions set forth in this Agreement on behalf
of ▇▇▇▇▇▇ are true and correct as of, or have been fully performed and
complied with by, the closing date.
7.02 Exchange of Shares. On the closing date, each share of common
stock of NAS then issued and outstanding, will be exchanged, on a pro-rata
basis, for fully paid and nonassessable shares of ▇▇▇▇▇▇ in accordance with this
Agreement.
7.03 No Fractional Shares. No certificates for fractional share
interests of common stock of ▇▇▇▇▇▇ will be issued, but, in lieu thereof, ▇▇▇▇▇▇
will issue one share of its common stock for each fractional share held in NAS.
7.04 Appointment of Directors. At the closing of this Agreement, ▇▇▇▇▇▇
will cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to be appointed to ▇▇▇▇▇▇'▇ Board of Directors.
Following such appointment, all present officers and directors of ▇▇▇▇▇▇ will
resign.
ARTICLE VIII
REMEDIES
8.01 Arbitration. Any controversy or claim arising out of, or relating
to, this Agreement, or the making, performance, or interpretation thereof, shall
be settled by arbitration in Denver, Colorado in accordance with the Rules of
the American Arbitration Association then existing, and judgment on the
arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
8.02 Costs. If any legal action or any arbitration or other proceeding
is brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorney's fees and other costs incurred
in that action or proceeding, in addition to any other relief to which it or
they may be entitled.
8.03 Termination. In addition to the other remedies, ▇▇▇▇▇▇ or NAS may
on or prior to the closing date terminate this Agreement, without liability to
the other party:
(i) If any bona fide action or proceeding shall be pending against ▇▇▇▇▇▇ or NAS
on the closing date that could result in an unfavorable judgment, decree, or
order that would prevent or make unlawful the carrying out of this Agreement or
if any agency of the federal or of any state government shall have objected at
or before the closing date to this acquisition or to any other action required
by or in connection with this Agreement;
(ii) If the legality and sufficiency of all steps taken and to be taken by each
party in carrying out this Agreement shall not have been approved by the
respective party's counsel, which approval shall not be unreasonably withheld.
(iii) If a party breaches any representation, warranty, covenant or obligation
of such party set forth herein and such breach is not corrected within ten days
of receiving written notice from the other party of such breach.
ARTICLE IX
MISCELLANEOUS
9.01 Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
9.02 No Oral Change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
9.03 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, convenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
9.04 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
9.05 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements,
understandings and the letters of intent between the parties.
9.06 State Law. This Agreement and its application shall be governed
by the laws of the State of Colorado.
9.07 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.08 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
▇▇▇▇▇▇ International, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
North American Software Associates, Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
North American Software Associates, Limited
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (fax)
9.09 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
9.10 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall survive the
closing of this Agreement.
9.ll Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein. Neither party will
intentionally take any action, or omit to take any action, which will cause a
breach of such party's obligations pursuant to this Agreement.
9.12 Expenses. Each of the parties hereto agrees to pay all of its own
expenses (including without limitation, attorneys' and accountants' fees)
incurred in connection with this Agreement, the transactions contemplated herein
and negotiations leading to the same and the preparations made for carrying the
same into effect. Each of the parties expressly represents and warrants that no
finder or broker, with the exception of The Lumiere Companies, has been involved
in this transaction and each party agrees to indemnify and hold the other party
harmless from any commission, fee or claim of any person, firm or corporation
employed or retained by such party (or claiming to be employed or retained by
such party) to bring about or represent such party in the transactions
contemplated by this Agreement. The parties understand that following the
closing of this transaction The Lumiere Companies will received 1,687,934 shares
of the common stock of ▇▇▇▇▇▇.
AGREED TO AND ACCEPTED as of the date first above written.
▇▇▇▇▇▇ International, Inc.
By _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
North American Software Associates, Limited.
By __________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
AGREED TO AND ACCEPTED as to Articles I and III only:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TREI Trust
By _________________________________
Trustee
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▇▇▇ ▇▇▇▇▇▇▇ III
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▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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▇.▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇. ▇'▇▇▇▇
Citrus Springs Trust
By _______________________________
Trustee
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Forest ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇
EXHIBIT A
Officers and directors of North American Software Associates, Limited
Name Position
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ President, Treasurer, Secretary, Director
W. ▇▇▇▇▇ ▇▇▇▇▇ Vice President, Director, Market Development
▇▇▇ ▇▇▇▇▇▇▇, III Vice President, Chief Information & Operating Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇, III Vice President, Government Affairs
EXHIBIT G
1. Officers and directors of ▇▇▇▇▇▇ International, Inc.
Name Position
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President and Director
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President, Secretary and Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Director
2. ▇▇▇▇▇▇ International, Inc. does not have any agreements or commitments to
compensate any person following the closing of this Agreement.
3. Banks
Vectra Bank of Colorado
Denver Tech Center Branch
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Account No. 415 000 1255
First United Bank
Cottonwood Plaza Office
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Account No. 403 000 1192
No safe deposit boxes.
4. No person has a power of attorney from ▇▇▇▇▇▇ International, Inc.
EXHIBIT H Financial Statements
Financial statements are attached.
Since September 30, 1999 ▇▇▇▇▇▇ International, Inc. has sold all of
its assets to an entity affiliated with ▇▇▇▇▇▇ ▇▇▇▇▇▇ in consideration of
such entity's assumption of all liabilities of ▇▇▇▇▇▇ International, Inc.
at the time of sale.
At the closing of this Agreement, ▇▇▇▇▇▇ International, Inc. will not
have any liabilities, with the exception of a $10,000 note payable to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
EXHIBIT I None
EXHIBIT J None
EXHIBIT K None
EXHIBIT L None