EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement"), is
entered into as of this 17 day of December 1996, by and among Am-Pac
International, Inc., a Nevada corporation (hereinafter referred to as "Am-Pac");
T&P Investments, Inc., a Florida corporation (hereinafter referred to as "T&P");
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual, (hereinafter referred to as "▇▇▇▇▇▇▇.")
▇▇▇▇▇▇▇ may also be referred to hereafter as the "Shareholder."
Premises
This Agreement provides for the acquisition by Am-Pac of 100% of the issued
and outstanding shares of T&P in exchange for $1,000,000 worth of Am-Pac common
stock, as defined herein, on the terms and conditions hereinafter provided, all
for the purpose of effecting a so-called "tax-free" reorganization pursuant to
Sections 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived here from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF T&P AND ▇▇▇▇▇▇▇
As an inducement to, and to obtain the reliance of Am-Pac, T&P and ▇▇▇▇▇▇▇
represent and warrant as follows:
Section 1.01 - Organization.T&P is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Florida and has
the corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets to carry on its business in
all material respects as it is now being conducted, including qualification to
do business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it required qualification except where failure to be so qualified
would not have a material adverse effect on its business. Included in the T&P
Schedules (as hereinafter defined) are complete and correct copies of the
articles of incorporation, as amended, and bylaws of T&P as in effect on the
date hereof. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of T&P's articles of incorporation or bylaws. T&P has taken all
actions required by law, its articles of incorporation, or otherwise to
authorize the execution and delivery of this Agreement.
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T&P has full power, authority, and legal right and has taken all action
required by law, its bylaws, articles of incorporation, memorandum and articles
of association, and otherwise to consummate the transactions herein
contemplated.
Section 1.02 - Capitalization and Outstanding Shares. The authorized
capitalization of T&P consists of 1000 shares of stock, par value of $10.00 per
share, of which ▇▇▇▇▇▇▇ owns 50 shares, which constitutes all of the outstanding
and issued shares of T&P to date of closing. Such shares are legally issued,
fully paid, and non-assessable and not issued in violation of the pre-emptive or
other rights of any person.
Section 1.03 - Subsidiaries and Predecessor Corporations. T&P does not have
any subsidiaries and does not own, beneficially or of record, any shares of any
other corporation.
Section 1.04 - Financial Statements.
(a) Included in the T&P Schedules is the audited balance sheet of T&P
as of years end December 31, 1994, 1995 and 1996, and the related audited
combined statements of profit and loss account and combined statement of
cash flows for the years ended December 31, 1994, 1995 and 1996, together
with notes to such statements and the opinion of ▇.▇. ▇▇▇▇▇ & Co.
independent certified public accountant, with respect thereto. Also
included is the unaudited balance sheet and related financials as of
September 30, 1996. The costs of these audits will be paid by Am-Pac.
(b) All such financial statements have been prepared in accordance
with generally accepted accounting principles generally accepted and
conforming to United States GAAP. The T&P balance sheet presents a true and
fair view as of its date of the financial condition of T&P. T&P did not
have, as of the date of such balance sheet, except as and to the extent
reflected or reserved against therein, any liabilities or obligations
(absolute or contingent) which should be reflected in a balance sheet or
the notes thereto, prepared in accordance with accounting principles
generally accepted in the United States, and all assets reflected therein
are properly reported and present fairly the value of the assets of T&P in
accordance with accounting principles generally accepted in United States.
The statements of profit and loss account and statement of cash flow
reflect fairly the information required to be set forth therein by United
States GAAP.
(c) T&P has filed all income and/or franchise tax returns required to
be filed by it from inception to the date hereof. Included in the T&P
Schedules are true and correct copies of the income tax returns of T&P
filed for the prior three years. None of such income tax returns have been
examined by the appropriate tax authorities. Each of such income tax
returns reflects the taxes due for the period covered thereby, except for
amounts which, in the aggregate, are immaterial.
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(d) T&P does not owe any unpaid taxes (including any deficiencies,
interest, or penalties) through September 30, 1996, for which T&P may be
liable in its own right or as a transferee of the assets of, or as a
successor to, any other corporation or entity. Furthermore, except as
accruing in the normal course of business, T&P does not owe any accrued and
unpaid taxes to date of this Agreement.
(e) The books and records, financial and otherwise, of T&P are in all
material respects complete and correct and have been maintained in
accordance with good business and accounting practices.
(f) T&P has good and marketable title to its assets and, except as set
forth in the T&P Schedules or the financial statements of T&P or the notes
thereto, has no material contingent liabilities, direct or indirect,
matured or unmatured.
Section 1.05 - Information. The information concerning T&P set forth in
this Agreement and in the T&P Schedules is complete and accurate in all material
respects and does not contain any untrue statement of a material fact or omit to
state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 1.06 - Options or Warrants or Subscriptions. There are no existing
options, warrants, calls, subscriptions or commitments of any character relating
to the authorized and unissued T&P common stock, except options, warrants, calls
or commitments, if any, to which T&P is not a party and by which it is not
bound.
Section 1.07 - Absence of Certain Changes or Events. Except as set forth in
this Agreement or the T&P Schedules, since June 30, 1996:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of T&P; or (ii) any
damage, destruction, or loss to T&P (whether or not covered by insurance)
materially and adversely affecting the business, operations, properties,
assets, or condition of T&P.
(b) T&P has not (i) amended its articles of incorporation or bylaws;
(ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the
aggregate are extraordinary or material considering the business of T&P;
(iv) made any material change in its method of management, operation or
accounting; (v) entered into any other material transaction other than
sales in the ordinary course of its business; (vi) made any accrual or
arrangement for payment of bonuses or special compensation of any kind or
any severance or termination pay to any present or former officer or
employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its employees
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whose monthly compensation exceeds $1,000; or (viii) made any increase in
any profit sharing, bonus, deferred compensation, insurance, pension,
retirement, or other employee benefit plan, payment, or arrangement made
to, for, or which its officers, directors, or employees;
(c) T&P has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability
(absolute or contingent) except liabilities incurred in the ordinary course
of business; (ii) paid or agreed to pay any material obligations or
liability (absolute or contingent) other than current liabilities reflected
in or shown on the most recent T&P balance sheet, and current liabilities
incurred since that date in the ordinary course of business and
professional and other fees and expenses in connection with the preparation
of this agreement and the consummation of the transactions contemplated
hereby; (iii) sold or transferred, or agreed to sell or transfer, any of
its assets, properties, or rights (except assets, properties, or rights not
used or useful in its business which, is the aggregate have a value of less
than $1,000), or canceled, or agreed to cancel, any debts or claims (except
debts or claims which in the aggregate are of a value of less than $1,000);
(iv) made or permitted any amendment or termination of any contract,
agreement, or license to which it is a party if such amendment or
termination is material, considering the business or T&P; or (v) issued,
delivered, or agreed to issue or deliver any stock, bonds or other
corporate securities including debentures (whether authorized and unissued
or held as treasury stock); and
(d) to the best knowledge of T&P and ▇▇▇▇▇▇▇, T&P has not become
subject to any law or regulation which materially and adversely affects, or
in the future may adversely affect the business, operations, properties,
assets, or condition of T&P.
Section 1.08 - Title and Related Matters. T&P has good and marketable title
to all of its properties, inventory, interests in properties, and assets, real
and personal, which are reflected in the most recent T&P balance sheet or
acquired after that date (except properties, interests in properties, and assets
sold or otherwise disposed of since such date in the ordinary course of
business) free and clear of all liens, pledges, charges, or encumbrances except
(a) statutory liens or claims not yet delinquent; (b) such imperfections of
title and easements as do not and will not materially detract from or interfere
with the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; and (c) as described in the T&P Schedules.
Section 1.09 - Litigation and Proceedings. Except as set forth in the T&P
Schedules, and the lawsuit brought by ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ against T&P as a wrongful
death action, Cause no. c195/515 in Orange County, Florida, ("Hannah lawsuit")
there are no actions, suits, proceedings, or investigations pending or, to the
knowledge of T&P after reasonable investigation, threatened by or against T&P or
affecting T&P or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
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arbitrator of any kind. Because all parties acknowledge the potential cost
and inconvenience involved with litigation, and the potential liability
involved, ▇▇▇▇▇▇▇ and T&P agree that Am-Pac may unilaterally terminate this
contract in accordance with section 4.07(c), after its investigation of the
claims and defenses associated with the Hannah lawsuit. Neither ▇▇▇▇▇▇▇ nor T&P
has any knowledge of any material default on its part with respect to any
judgment, order, injunction, decree, award, rule, or regulation or any court,
arbitrator, or governmental agency or instrumentality or of any circumstances
which, after reasonable investigation, would result in the discovery of such a
default. Additionally, there are no actions, suits, proceedings, or
investigations pending or, to the knowledge of ▇▇▇▇▇▇▇ after reasonable
investigation, threatened by or against ▇▇▇▇▇▇▇ or affecting ▇▇▇▇▇▇▇ or his
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign, or before any arbitrator of any kind.
▇▇▇▇▇▇▇ does not have any knowledge of any material default on his part with
respect to any judgment, order, injunction, decree, award, rule, or regulation
or any court, arbitrator, or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
Section 1.10 - Contracts.
(a) Except as included or described in the T&P Schedules, there are no
material contracts, agreements, franchises, license agreements, or other
commitments to which T&P is a party or by which it or any of its assets,
products, license, or properties are bound other than those incurred in the
ordinary course of business;
(b) All contracts, agreements, franchises, license agreements, and
other commitments to which T&P is a party or by which its properties are
bound and which are material to the operations of T&P taken as a whole are
valid and enforceable by T&P in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally;
(c) T&P is not a party to or bound by, and the properties of T&P are
not subject to any contract, agreement, other commitment or instrument; any
charter or other corporate restriction; or any judgment order, writ,
injunction, decree, or award which materially and adversely affects, the
business operations, properties, assets, or condition of T&P; and
(d) Except as included or described in the T&P Schedules or reflected
in the most recent T&P balance sheet, T&P is not a party to any oral or
written (i) contract for the employment of any officer or employee which is
not terminable on 30 days or less notice; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension benefit or
retirement plan, agreement, (iii) agreement, contract, or indenture
relating to the borrowing or money, (iv) guaranty of any obligation, other
than one on which T&P is a primary obligor, for the borrowing of money or
otherwise, excluding endorsements made for collection and other guaranties
of obligations which, in the aggregate do not exceed more than one year or
providing for payments in excess of $1,000 in the aggregate; (vi)
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collective bargaining agreement; (vii) agreement with any present or former
officer or director of T&P, other than as provided in this Agreement; or
(viii) contract, agreement, or other commitment involving payments by it of
more than $1,000 in the aggregate.
Section 1.11 - Material Contract Defaults. T&P is not in default in any
material respect under the terms of any outstanding contract, agreement, lease,
or other commitment which is material to the business, operations properties,
assets or condition of T&P and there is no event of default in any material
respect under any such contract, agreement, lease, or other commitment in
respect of which T&P has not taken adequate steps to prevent such a default from
occurring.
Section 1.12 - No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which T&P or
▇▇▇▇▇▇▇ are a party or to which any of their properties or operations are
subject.
Section 1.13 - Governmental Authorizations. Except as set forth in the T&P
Schedules, T&P has all licenses, franchises, permits, and other governmental
authorizations that are legally required to enable it to conduct its business in
all material respects as conducted on the date hereof. Except for compliance
with federal and state securities and corporation laws, as hereinafter provided,
no authorization, approval, consent, or order of, or registration, declaration,
or filing with, any court or other governmental body is required in connection
with the execution and delivery by T&P of this Agreement and the consummation by
T&P of the transaction contemplated hereby.
Section 1.14 - Compliance With Laws and Regulations. Except as set forth in
the T&P Schedules, to the best of its knowledge, T&P has complied with all
applicable statues and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets, or
condition of T&P or except to the extent that noncompliance would not result in
the occurrence of any material liability for T&P.
Section 1.15 - Liquor License. In order for T&P to operate as a club, it
obtained a liquor license from the Florida Alcoholic Beverage Committee, number
4 COP #5800254. This is the only license necessary for T&P to conduct its
present business; and T&P and ▇▇▇▇▇▇▇ warrant that this license is freely
transferrable or assignable; and will be so assigned or transferred to Am-Pac or
its designee upon closing. Furthermore T&P represents and warrants that it has
paid all fees necessary to the maintenance of such license, and that no liens
have been filed against such license.
Section 1.16 - Approval of Agreement. The board of directors and sole
shareholder of T&P has authorized the execution and delivery of this Agreement
by T&P and has approved the agreement and the transactions contemplated hereby.
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Section 1.17 -- Labor Relations. T&P has not had work stoppage resulting
from labor problems. To the knowledge of T&P, no union or other collective
bargaining organization is organizing or attempting to organize any employee of
T&P.
Section 1.18 - T&P Schedules. Within 20 days after execution hereof, T&P
will deliver to Am-Pac the following schedules, which are collectively referred
to as the "T&P Schedules" and which consist of separate schedules dated as of
the date of execution of this Agreement, all certified by the chief executive
officer of T&P as complete, true, and correct as of the date of this Agreement
in all material respects:
(a) a schedule containing complete and correct copies of the
certificate and articles of incorporation, as amended, and bylaws of T&P in
effect as of the date of this Agreement;
(b) a schedule containing the financial statements of T&P identified
in paragraph 1.04(a);
(c) a schedule containing a list indicating the name and address of
each Shareholder of T&P together with the number of shares owned by him,
her or it;
(d) a schedule containing all material contracts necessary to the
operation of its business
(e) copies of all licenses, permits, and other governmental
authorization (or requests or applications therefor) pursuant to which T&P
carries on or proposes to carry on its business (except those which, in the
aggregate, are immaterial to the present or proposed business of T&P),
including but not limited to liquor license no. 4 COP #5800254;
(f) a schedule listing the accounts receivable and notes and other
obligations receivable of T&P as of September 30, 1996, or thereafter other
than in the ordinary course of business of T&P, indicating the debtor and
amount, and classifying the accounts to show in reasonable detail the
length of time, if any, overdue, and stating the nature and amount of any
refunds, set offs, reimbursements, discounts, or other judgments which are
in the aggregate material and due to or claimed by such creditor;
(g) a schedule listing the accounts payable and notes and other
obligations payable of T&P as of September 30, 1996, or that arose
thereafter indicating the creditor and amount, classifying the accounts to
show in reasonable detail the length of time, if any, overdue, and stating
the nature and amount of any refunds, set offs, reimbursements, discounts,
or other adjustments, which in the aggregate are material and due or
payable to T&P respecting such obligations (It is the parties intent that
Am-Pac understand the full monthly costs of operating the business as T&P
is currently so doing);
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(h) a schedule setting forth a description of any material adverse
change in the business, operations, property, inventory, assets, or
conditions of T&P since June 30, 1996, required to be provided pursuant to
section 1.07 hereof;
(i) a schedule setting forth all funds in the operating cash bank; and
(j) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the T&P Schedules
by sections 1.01 through 1.19.
T&P shall cause the T&P Schedules and the instruments and data delivered to
Am-Pac hereunder to be updated after the date hereof up to and including the
Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by T&P. T&P shall have a
period of twenty (20) days after the date hereof to provide such schedules. If
T&P cannot or fails to do so, or if Am-Pac finds the schedules unacceptable,
Am-Pac may terminate this agreement by giving written notice to T&P within
thirty (30) days after the schedules were due to be produced or were provided.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF THE SHAREHOLDER
As an inducement to, and to obtain the reliance of Am-Pac, the T&P
Shareholder represents and warrants as follows:
Section 2.01 - Ownership of T&P Shares by ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ hereby
represents and warrants with respect to himself that he is the legal and
beneficial owner of 50 T&P shares (which constitute 100% of all of T&P's
outstanding shares), free and clear of any claims, charges, equities, liens,
security interests, and encumbrances whatsoever, including but not limited to
any marital or community property interest) and that he has full right, power,
and authority to transfer, assign, convey, and deliver its T&P shares; and
delivery of such shares at the closing will convey to Am-Pac good and marketable
title to such shares and clear of any claims, charges, equities, liens, security
interests and encumbrances whatsoever.
ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF AM-PAC
As an inducement to, and to obtain the reliance of T&P and the T&P
Shareholder, Am-Pac represents and warrants as follows:
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Section 3.01 - Organization.Am-Pac is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Nevada and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets to carry on its business in
all material respects as it is now being conducted, and there is no jurisdiction
in which it is not qualified in which the character and location of the assets
owned by it or the nature of the business transacted by it requires
qualification. Included in the Am-Pac Schedules (as hereinafter defined) are
complete and correct copies of the articles of incorporation of Am-Pac as in
effect on the date hereof. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not,
violate any provision of Am-Pac's articles of incorporation or bylaws. Am-Pac
has taken all action required by law its articles of incorporation, its bylaws,
or otherwise to authorize the execution and delivery of this Agreement, and
Am-Pac has full power, authority, and legal right and has taken all action
required by law, it articles of incorporation, bylaws, or otherwise to
consummate the transactions herein contemplated.
Section 3.02 - CapitalizatioAm-Pac's authorized capitalization consists of
149,900,000 shares of common stock, and 100,000 shares of Preferred Stock, par
value $.001, of which 406,583 common shares are issued and outstanding. All
issued and outstanding shares are legally issued, fully paid, non-assessable and
not issued in violation of the pre-emptive or other rights of any person.
Section 3.03 - Subsidiaries and Predecessor Corporation. Am-Pac
International is a newly formed company whose sole purpose was to merge with
Captain Tony's Pizza, Inc., (Captain Tony's) a New York Company whose
shareholders and directors elected to reincorporate in the state of Nevada.
Articles of Merger have been, or are concurrently being filed with the
appropriate state authorities. Pursuant to the plan of merger, Am-Pac shall
succeed to all the assets and liabilities of Captain Tony's. Am-Pac owns one
subsidiary, Leisureshare International Limited,. a British Virgin Island company
which is currently negotiating an acquisition with a Spanish land development
company. In the event that the acquisition of the Spanish company is
consummated, Am-Pac will be obligated to issue approximately 16,000 Series A
Convertible Preferred Shares, which shall be convertible at a rate of one
preferred share for 500 common shares, and approximately 2,500,000 shares of
Am-Pac common stock. Additionally, Captain Tony's executed an Acquisition
Agreement with the Shareholders of Pacific Foods Limited, a BVI corporation, to
acquire all of the shares of that company. Pursuant to that agreement, Am-Pac is
obligated to issue 7,000,000 shares of its common stock to the Pacific Foods
shareholders; and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is granted an option to purchase an 100,000
shares of Am-Pac common stock. Am-Pac is negotiating with ▇▇▇▇▇▇▇▇ for an option
to purchase another 250,000 shares.
Section 3.04 - Financial Statements.
(a) Included in the Am-Pac Schedule are the audited balance sheets of
its predeccesor company Captain Tony's Pizza, Inc. as of December 31,
1995, and the related audited statements of operations, stockholders'
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equity and changes in financial position for the fiscal year ended
December 31, 1995, together with the notes to such statements and the
opinion of certified public accountants. Also included are Captain
Tony's most recently prepared quarterly report.
(b) All such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved. The Am-Pac balance sheets present fairly as of
their respective dates the financial condition of Am-Pac. Am-Pac did not
have as of the date of any such Am-Pac balance sheet, except as and to
the extent reflected or reserved against therein, any liabilities or
obligations (absolute or contingent) which should be reflected in a
balance sheet or the notes thereto. All assets reflected therein are
properly reported and present fairly the value of the assets of Am-Pac,
in accordance with generally accepted accounting principles. The
statements of operations, stockholders' equity and changes in financial
position reflect fairly the information required to be set forth therein
by generally accepted accounting principles.
(c) Am-Pac has no liabilities with respect to the payment of any
federal, state, county local or other taxes (including any deficiencies,
interest or penalties), except for taxes accrued but not yet due and
payable.
(d) Am-Pac has filed all state, federal or local income and/or franchise
tax returns required to be filed by it from inception to the date
hereof. None of such federal income tax returns have been examined by
the Internal Revenue Service. Each of such income tax return reflects
the taxes due for the period covered thereby, except for amounts which,
in the aggregate, are immaterial.
(e) Am-Pac's books and records, are in all material aspects complete,
correct and have been maintained in accordance with good business and
accounting practices.
Section 3.05 - Information. The information concerning Am-Pac set forth in
this Agreement and the Am-Pac Schedules is complete and accurate in all material
respects and does not contain any untrue statements of a material fact or omit
to state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 3.06 - Opinions or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued stock of Am-Pac, except options, warrants, calls or commitments, if
any, to which Am-Pac is not a party and by which it is not bound.; and the
abovementioned obligations described in section 3.03.
Section 3.07 - Title and Related Matters. Am-Pac has good and marketable
title to all of its properties, inventory, interest in properties, and assets,
real and personal, which are reflected in Am-Pac's most recent balance sheet or
acquired after that date (except properties, interest in properties, and assets
sold or otherwise disposed of since such date in the ordinary course of
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business), free and clear of all liens, pledges, charges, or encumbrances except
(a) statutory liens or claims not yet delinquent; (b) such imperfections of
title and easements as do not and will not materially detract from or interfere
with the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; (c) as described in the Am-Pac Schedules.
Section 3.08 - Litigation and Proceedings. Am-Pac is involved as a
defendant in litigation with a plaintiff in Cleveland Ohio regarding claims in
excess of $25,000.
Section 3.09 - Compliance With Laws and Regulations. To the best of its
knowledge, Am-Pac has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or conditions of Am-Pac or
except to the extent that noncompliance would not result in the occurrence of
any material liability, except certain filing reports with the Securities and
Exchange Commission, as noted in the attached schedules.
Section 3.10 - Approval of Agreement. The board of directors of Am-Pac has
authorized the execution and delivery of this Agreement by Am-Pac and has
approved this Agreement and the transactions contemplated hereby.
Section 3.11 - Continuity of Business Enterprises. Am-Pac has no commitment
or present intention to liquidate T&P or sell or otherwise dispose of a material
portion of T&P's business or assets following the consummation of the
transactions contemplated hereby.
Section 3.12 - Am-Pac Schedules. Am-Pac has delivered to T&P the following
schedules, which are collectively referred to as the "Am-Pac Schedules" and
which consist of separate schedules, which are dated the date of this Agreement,
all certified by the chief executive officer of Am-Pac to be complete, true, and
accurate:
(a) a schedule containing complete and accurate copies of the
articles of incorporation of Am-Pac as in effect as of the date
of this Agreement;
(b) a schedule containing a complete and accurate copy of the
Am-Pac quarterly report on Form 10QSB for the three month period
ending September 30, 1996, including the unaudited financial
statements identified in section 3.04(a)
(c) a schedule containing a copy of the Am-Pac annual report on
Form 10-KSB for the year ended December 31, 1995 which complies
in all material respects with the applicable requirements of the
Securities Act of 1934, as amended;
(d) a schedule setting forth any other information, together with
11
any required copies of documents, required to be disclosed to the
Exchange in the Am-Pac Schedules by Article III.
Am-Pac shall cause the Am-Pac Schedules and the instruments and data
delivered to T&P hereunder to be updated after the date hereof up to and
including the Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by Am-Pac. Am-Pac shall
have a period of twenty (20) days after the date hereof to provide such
schedules. If Am-Pac cannot or fails to do so, or if T&P finds the schedules
unacceptable, and after T&P gives Am-Pac written notice of such failure or
unacceptability and a 10 day period to cure, T&P may terminate this agreement by
giving written notice to T&P within thirty (30) days after the schedules were
due to be produced or were provided.
ARTICLE IV
PLAN OF EXCHANGE
Section 4.01 - The Exchange. On the terms and subject to the conditions set
forth in this Agreement, ▇▇▇▇▇▇▇ hereby agrees to assign, transfer, and deliver
to Am-Pac, free and clear of all liens, pledges, encumbrances, charges,
restrictions or known claims of any kind, nature, or description, the following
number of shares of common stock of T&P: 50 shares from ▇▇▇▇▇▇▇, constituting
100% of the issued and outstanding shares of common stock of T&P, and Am-Pac
agrees to acquire such shares on such date by issuing and delivering in exchange
therefor shares of Am-Pac restricted common stock, par value $0.001, in the
amount of $1,000,000 worth of such shares as follows:
The number of Am-Pac shares to be received shall be determined by dividing
the dollar number by the Market Price at which Am-Pac shares are trading. Market
Price is defined as the average of the closing bid and ask prices of the Am-Pac
common stock for the five consecutive trading days immediately prior to the
Closing Date as reported by NASDAQ.
The $1,000,000 worth of Am-Pac shares to be received in accordance herewith
shall be referred to as the "Exchanged Am-Pac Stock." At the Closing, ▇▇▇▇▇▇▇
shall, on surrender of its certificate or certificates, representing such 100%
of T&P shares to Am-Pac, be entitled to receive a certificate or certificates
evidencing $1,000,000 worth of Am-Pac stock as determined in accordance with
this section 4.01.
Section 4.02 - Registration Rights. The Exchanged Am-Pac Stock shall have
no registration rights.
Section 4.03 - Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time and place as
the parties may mutually agree ("Closing Date".)
12
Section 4.05 - Closing Events. At the Closing, each of the respective
parties hereto shall execute, acknowledge, and deliver (or shall ensure to be
executed, acknowledged, and delivered) any and all certificates, opinions,
financial statements, schedules, agreements, resolutions, ruling or other
instruments required by this Agreement to be so delivered at or prior to the
Closing, together with such other items as may be reasonably requested by the
parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby. Am-Pac agrees that ▇▇▇▇▇▇▇ may
retain all funds in T&P's operating cash bank not to exceed $30,000.
Section 4.06 - Finder's Fees. ▇▇▇▇▇▇▇ has agreed to pay a finder's fee to
▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ pursuant to the closing of the acquisition of
another company, Am-Pac Investments, which shall own certain real property
commonly described as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, both in
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. There shall be no payment of any Finder's fees in
conjunction with this agreement. In the event that ▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇
assert claims for such, ▇▇▇▇▇▇▇ agrees to indemnify and hold harmless Am-Pac and
its proeprties from and against all such claims.
Section 4.07 - Termination.
(a) This Agreement may be terminated by the board of directors of either
Am-Pac or T&P at any time prior to the Closing Date if:
(i) there shall be any additional, i.e. actual or threatened
action or proceeding before any court or any governmental body
which has not been disclosed in this agreement and which shall
seek to restrain, prohibit, or invalidate the transactions
contemplated by this Agreement and which, in the judgment of such
board of directors, made in good faith and based upon the advice
of its legal counsel, makes it inadvisable to proceed with the
exchange contemplated by this Agreement;
(ii) any of the transactions contemplated hereby are disapproved
by any regulatory authority whose approval is required to
consummate such transactions or in the judgment of such board of
directors, made in good faith and based on the advice of counsel,
there is substantial likelihood that any such approval will not
be obtained or will be obtained only on a condition or conditions
which would be unduly burdensome, making it inadvisable to
proceed with the exchange; or
(iii) there shall have been any change after the date of the
latest balance sheets of T&P, and Am-Pac, respectively, in the
assets, properties, business, or financial condition of Am-Pac or
T&P, which could have a materially adverse affect on the value of
the business of Am-Pac or T&P, respectively, except any changes
disclosed in the Am-Pac or T&P Schedules, as the case may be,
dated as of the date of the execution of this Agreement; or
13
(iv) the Board of Directors of Am-Pac or T&P or the Shareholder
determine in good faith that a condition to closing has not
occurred, including but not limited to:
(a) the liquor license also made subject to this agreement
shall be found to be ineffective, nontransferable or the
like.
In the event of termination pursuant to this paragraph (a) of Section 4.06,
no obligation, right or liability shall arise hereunder, and each party shall
bear all of the expenses incurred by it in connection with the negotiation,
drafting, and execution of this Agreement and the transactions herein
contemplated.
(b) This Agreement may be terminated at any time prior to the Closing by
action of the board of directors of Am-Pac, if T&P shall fail to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of T&P contained herein
shall be inaccurate in any material respect. If this Agreement is terminated
pursuant to this paragraph (b) of Section 4.06, this Agreement shall be of no
further force or effect, and no obligation, right or liability shall arise
hereunder, except that T&P shall bear its own costs as well as the reasonable
costs of Am-Pac in connection with the negotiations, preparation, and execution
of this Agreement, and matters connected therewith; and qualifying the offer and
sale of securities contemplated hereby for execution from the registration
requirements of state and federal securities laws.
(c) The Board of Directors of Am-Pac may unilaterally terminate this
contract if in their sole judgment, they determine that the potential liability
of T&P in conjunction with the litigation involving Page Hannah, and/or wrongful
death claims does not justify the economic risk of Am-Pac's investing in T&P. In
the event of termination pursuant to this paragraph (c) of Section 4.06, no
obligation, right or liability shall arise hereunder, and each party shall bear
all of the expenses incurred by it in connection with the negotiation, drafting,
and execution of this Agreement and the transactions herein contemplated.
(d) This Agreement may be terminated at any time prior to the Closing by
action of the board of directors of T&P or by the Shareholder if Am-Pac shall
fail to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties of
Am-Pac contained herein shall be inaccurate in any material respect. If this
Agreement is terminated pursuant to this paragraph (d) of Section 4.06, this
Agreement shall be of no further force or effect, and no obligation, right or
liability shall arise hereunder, except that Am-Pac shall bear its own costs as
well as the reasonable costs of T&P incurred in connection with the negotiation,
preparation and execution of this Agreement.
14
ARTICLE V
SPECIAL COVENANTS
Section 5.01 - Access to Properties and Records. Am-Pac and T&P will each
afford to the officers and authorized representatives of the other full access
to the properties, books and records of Am-Pac or T&P as the case may be, in
order that each may have full opportunity to make such reasonable investigation
as it shall desire to make of the affairs of the other, and each will furnish
the other with such additional financial and operating data and other
information as to the business and properties of Am-Pac or T&P, as the case may
be, as the other shall from time to time reasonably request.
Section 5.02 - Delivery of Books and Records. At the Closing, T&P shall
deliver to Am-Pac the originals of the corporate minute books, books of account,
contracts, records, and all other books or documents of T&P now in the
possession of T&P or its representatives.
Section 5.03 - Special Covenants and Representations Regarding the
Exchanged Am-Pac Stock. The consummation of this Agreement and the transactions
herein contemplated, including the issuance of the Exchanged Stock to the
Shareholder of T&P as contemplated hereby, constitutes the offer and sale of
securities under the Securities and Exchange Act and applicable state statutes.
▇▇▇▇▇▇▇ acknowledges that the shares of Am-Pac to be delivered to him pursuant
to this Agreement have not been registered under the Securities Act of 1993 as
amended, referred to in this Agreement as the "Securities Act," or the laws of
any other jurisdiction, and that therefore the stock is not fully transferable
except as permitted under various exemptions, if any contained in the Securities
Act and the rules of the Securities and Exchange Commission interpreting the
act. Under US law, Am-Pac Common Stock cannot be sold or transferred by the
shareholder unless they are subsequently registered under applicable law or an
exemption from registration is available. Am-Pac is not required to register or
assist in the registration of the Am-Pac Common Stock. The provisions contained
in this paragraph are intended to ensure compliance with the Securities Act..
▇▇▇▇▇▇▇ represents and warrants to Am-Pac that he is acquiring the shares of
Am-Pac common stock under this Agreement for his own account for investment, and
not for the purpose of resale or any other distribution of such shares. ▇▇▇▇▇▇▇
also represents and warrants that he has no present intention of disposing of
all or any part of such shares at any particular time, for any particular price
or on the happening of any particular circumstances. ▇▇▇▇▇▇▇ further represents
that he has such knowledge and experience in financial and business matters that
he is capable of evaluating the merits and risks of an investment in Am-Pac.
▇▇▇▇▇▇▇ acknowledges that Am-Pac is relying on the truth and accuracy of these
warranties and representations in issuing the shares without first registering
the shares under the Securities Act. ▇▇▇▇▇▇▇ covenants and represents that none
of the shares of Am-Pac capital stock to be issued to him pursuant to this
Agreement, will be offered, sold, assigned, pledged, transferred, or otherwise
disposed of except after full compliance with all of the applicable provisions
of the 1933 act and the rules and regulations of the Securities and Exchange
Commission under the 1933 act. Therefore ▇▇▇▇▇▇▇ agrees not to sell or otherwise
15
dispose of any of the shares of Am-Pac common stock received pursuant to this
agreement unless such is done pursuant to section 4.02 or ▇▇▇▇▇▇▇: 1. has
delivered to Am-Pac a written legal opinion in form and substance satisfactory
to counsel for Am-Pac to the effect that the disposition is permissible under
the terms of the Securities Act and regulations interpreting the act; 2. has
complied with the registration and propectus requirements of the 1933 act
relating to such disposition; or 3. has presented Am-Pac satisfactory evidence
that such a disposition is exempt from registration under the act. Am-Pac shall
place a stop transfer order against transfers of shares until one of the
conditions set forth in this paragraph have been met. Furthermore ▇▇▇▇▇▇▇ agrees
that the certificates evidencing the shares that he will receive under this
agreement will contain the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND HAVE BEEN TAKEN FOR INVESTMENT. THE SECURITIES
MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS A REGISTRATION STATEMENT UNDER THE
FEDERAL SECURITIES ACT OF 1933, AS AMENDED IS IN EFFECT FOR THE SECURITIES, OR
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS IN FACT
APPLICABLE TO SUCH OFFER OR SALE, AND SUCH EXEMPTION IS EVIDENCED BY AN OPINION
OF COUNSEL SATISFACTORY TO THE ISSUER.
Section 5.04 - Third Party Consents and Certificates. Am-Pac and T&P agree
to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein and therein contemplated.
Section 5.06 - Actions Prior to Closing.
(a) From and after the date of this Agreement until the Closing Date
and except as set forth in the Am-Pac or T&P Schedules or as
permitted or contemplated by this Agreement, Am-Pac and T&P
respectively, will each:
(i) carry on its business in substantially the same manner as it
has heretofore;
(ii) maintain and keep its properties in states of good repair
and condition as at present, except for depreciation due to
ordinary wear and tear and damage due to casualty;
(iii)maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by
it;
(iv) perform in all material respects all of its obligations
under material contracts, leases, and instruments relating
to or affecting its assets, properties, and business;
(v) use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to
maintain its relationship with its material suppliers and
customers; and
16
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and
state laws and all rules, regulations, and orders imposed by
federal or state governmental authorities.
(b) From and after the date of this Agreement until the Closing
Date, neither Am-Pac nor T&P will:
(i) make any changes in their articles of incorporation or
bylaws;
(ii) take any action described in Section 1.07 in the case of
T&P, or in Section 3.07, in the case of Am-Pac (except as
permitted therein or as disclosed in the applicable party's
schedules); or
(iii)enter into or amend any contract, agreement, or other
instruments of any of the types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary
course of business involving the sale of goods or services;
and Am-Pac may execute the exchange agreement with the
Spanish development company referenced herein and may
continue to negotiate and seek opportunities to acquire
business, and enter contracts accordingly.
Section 5.07 - Sales Under Rule 144 or 145, if Applicable.
(a) Am-Pac will use its best efforts to at all times comply with the
reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and NASD, including timely filing of all
periodic reports required under the provisions of the Exchange Act and
the rules and regulations promulgated thereunder.
(b) Upon being informed in writing by any such person holding restricted
stock of Am-Pac as of the date of this Agreement that such person
intends to sell any shares under Rule 144 or Rule 145 promulgated under
the Securities Act (including any rule adopted in substitution or
replacement thereof), Am-Pac will certify in writing to such person that
it has filed all of the reports required to be filed by it under the
Exchange Act to enable such person to sell such person's restricted
stock under Rule 144 or 145, as may be applicable in the circumstances,
or will inform such person in writing that it has not filed any such
report or reports.
(c) If any certificate representing any such restricted stock is
presented to Am-Pac's transfer agent for registration of transfer in
connection with any sale theretofore made under Rule 144 or 145,
17
provided such certificate is duly endorsed for transfer by the appropriate
person(s) or accompanied by a separate stock power duly executed by the
appropriate person(s) in each case with reasonable assurances that such
endorsements are genuine and effective, and is accompanied by an opinion of
counsel satisfactory to Am-Pac and its counsel that stock transfer has
complied with the requirements of Rule 144 or 145, as the case may be,
Am-Pac will promptly instruct its transfer agent to register such shares
and to issue one or more new certificates representing such shares to the
transferee and, if appropriate under the provisions of Rule 144 or 145, as
the case may be, free of any stop transfer order or restrictive legend. The
provisions of this Section 5.07 shall survive the Closing and the
consummation of the transactions contemplated by this Agreement.
Section 5.08 - Indemnification.
(a) T&P and the T&P ▇▇▇▇▇▇▇ hereby agree to indemnify Am-Pac and each of
the officers, agents and directors of Am-Pac as of the date of execution of
this Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they may
become subject arising out of or based on any inaccuracy appearing in or
misrepresentations made under Articles I and II of this Agreement. In the
event that any person or entity, including but not limited to ▇▇▇▇ ▇▇▇▇▇▇
or ▇▇▇▇ ▇▇▇▇▇▇, assert claims as brokers or finders, ▇▇▇▇▇▇▇ agrees to
indemnify and hold harmless Am-Pac and its proeprties from and against all
such claims. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated
hereby and termination of this Agreement.
(b) Am-Pac hereby agrees to indemnify T&P and each of the officers, agents,
and directors of T&P as of the date of execution of this Agreement against
any loss, liability, claim, damage, or expense (including, but not limited
to, any and all expense whatsoever reasonably incurred in investigating,
preparing, or defending against any litigation, commenced or threatened, or
any claim whatsoever), to which it or they may become subject arising out
of or based on any inaccuracy appearing in or misrepresentation made under
Article III of this Agreement. The indemnification provided for in this
paragraph shall survive the Closing and consummation of the interactions
contemplated hereby and termination of this Agreement.
(c) ▇▇▇▇▇▇▇ agrees to provide Am-Pac with a Release and Indemnification,
prior to Closing, and in a form satisfactory to Am-Pac which shall provide
that upon Closing, ▇▇▇▇▇▇▇ shall fully indemnify and hold harmless T&P, and
Am-Pac from and against any and all claims, demands, or causes of action,
arising from the death of Paige ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, including but not limited
to any claims, judgments or settlements in Cause no. CI 95 515, styled ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ as Personal representative of the Estate of Paige ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, vs. T&P Investments Inc, et. al. In the Circuit Court of the Ninth
Judicial Circuit in and for Orange County, Florida. Furthermore, Am-Pac may
18
require ▇▇▇▇▇▇▇ to pledge all or a portion of his acquired Am-Pac shares as
security for this indemnification agreement, pending the determination of
the above-referenced lawsuit. It is the parties intent to settle the
lawsuit, if possible and practical; however any settlement will require the
prior written consent of Am-Pac. As part of the settlement procedures, the
parties may,by mutual prior written consent, modify and/or discharge
▇▇▇▇▇▇▇'▇ obligations under the Indemnification agreement. This
Indemnification requirement (provided in Section 5.08) shall in no way
limit Am-Pac's rights to terminate the Agreement in accordance Article IV,
Section 4.07(c). The parties understand and agree that upon further due
diligence, Am-Pac may determine that despite ▇▇▇▇▇▇▇'▇ obligation to
provide an indemnification agreement as provided above, the risks do not
justify the acquisition, and consequently it may terminate the Agreement as
provided in Section 4.07(c).
Section 5.09 Marketing. After closing, the parties agree to use their best
efforts to negotiate a management contract between ▇▇▇▇▇▇▇ and T&P, to help
organize and market the concept "Headlightz." The parties agree that such name
and concept is a proprietary right belonging to Am-Pac, and ▇▇▇▇▇▇▇ agrees that
any and all disclosures regarding same are confidential and proprietary in
nature.
Section 5.10 Short Positions Prohibited. For a period beginning from the
closing date and ending on the second anniversary of the closing date neither
▇▇▇▇▇▇▇ nor any of his affiliates, subsidiaries, officers, directors or agents,
shall directly or indirectly maintain, or assist in maintaining any short
position in the securities of Am-Pac.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF AM-PAC
The obligations of Am-Pac under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 6.01 - Accuracy of Representations. The representations and
warranties made by T&P and the T&P Shareholder in this Agreement were true when
made and shall be true at the Closing Date with the same force and effect as if
such representations and warranties were made at and as of the Closing Date
(except for changes therein permitted by this Agreement), T&P and the T&P
Shareholder shall have performed or complied with all covenants and conditions
required by this Agreement to be performed or complied with by T&P and the T&P
Shareholder prior to or at the Closing. Am-Pac shall be furnished with a
certificate, signed by a duly authorized executive officer of T&P and dated the
Closing Date, to the foregoing effect.
Section 6.02 - Officer's Certificate. Am-Pac shall have been furnished with
a certificate dated the Closing Date and signed by a duly authorized officer of
T&P to the effect that no litigation, proceeding, investigation, or inquiry is
pending, or to the best knowledge of T&P threatened, which might result in an
action to enjoin or prevent the consummation of the transactions contemplated by
this Agreement, or, to the extent not disclosed in the T&P Schedules, by or
19
against T&P, which might result in any material adverse change in any of the
assets, properties, business, or operations of T&P.
Section 6.03 - No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business, or operations of T&P nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the financial condition, business or operations of T&P.
Section 6.04 - Good Standing. Am-Pac shall have received a certificate of
good standing from the Secretary of the State of Florida, dated as of a date
within ten days prior to the Closing Date certifying that T&P is in good
standing as a corporation in Florida.
Section 6.05 - License. Am-Pac shall have received evidenced that the
liquor license made a subject of this agreement is freely transferrable to
Am-Pac.
Section 6.06 - Other Items.
(a) Am-Pac shall have received a Shareholder list of T&P containing the
name, address, and number of shares held by each T&P Shareholder, certified
by an executive officer of T&P as being true, complete and accurate,
(b) Am-Pac shall have received such further documents, certificates or
instruments relating to the transactions contemplated hereby as Am-Pac may
reasonably request.
6.07. Indemnification. Am-Pac shall have received a Release and
Indemnification from ▇▇▇▇▇▇▇ in accordance with section 5.08(c).
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF T&P
AND THE T&P SHAREHOLDERS
The obligations of T&P and the T&P Shareholder under this Agreement are
subject to the satisfaction, at or before the Closing Date, of the following
conditions:
Section 7.01 - Accuracy of Representations. The representations and
warranties made by Am-Pac in this Agreement were true when made and shall be
true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Am-Pac shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Am-Pac prior to or at the Closing,
T&P shall have been furnished with a certificate, signed by a duly authorized
executive officer of Am-Pac and dated the Closing Date, to the foregoing effect.
20
Section 7.02 - Officer's Certificate. T&P shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized executive
officer of Am-Pac, to the effect that no litigation, proceeding, investigation
or inquiry is pending, other than those disclosed herein, or to the best
knowledge of Am-Pac threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 - Brokers. T&P and ▇▇▇▇▇▇▇ agree that there were no finders or
brokers involved in bringing the parties together or who were instrumental in
the negotiation, execution or consummation of this Agreement, other than ▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇; and that ▇▇▇▇▇▇▇ has reached an agreement with them for
payment from him upon closing of the Am-Pac Investments acquisition.
Section 8.02 - Governing Law. This Agreement shall be governed by, enforce,
and construed under and in accordance with the laws of the United States of
America and, with respect to the matters of state law, with the laws of Florida.
Section 8.03 - Notices. Any notice or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Am-Pac, to: ▇▇▇▇▇▇ ▇▇▇▇▇▇.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With copies to: Vanderkam and ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to T&P, to: T&P Corp.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
21
Section 8.04 - Attorney's Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable attorney's
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
Section 8.05 - Confidentiality. Each party hereto agrees with the other
parties that, unless and until the transactions contemplated by this Agreement
have been consummated, it and its representatives will hold in strict confidence
all data and information obtained with respect to another party or any
subsidiary thereof from any representative, officer, director or employee, or
from any books or records or from personal inspection, as such other party, and
shall not use such disclosure data or information or disclose the same to
others, except (i) to the extent such data or information is published, is a
matter of public knowledge, or is required by law to be published; and (ii) to
the extent that such disclosure data or information must be used or disclosed in
order to consummate the transactions contemplated by this Agreement. In the
event of the termination of this agreement, each party shall return to the other
party all documents and other materials obtained by it or on its behalf and
shall destroy all copies, digests, workpapers, abstracts or other materials
relating thereto, and each party will continue to comply with the
confidentiality provisions set forth herein.
Section 8.06 - Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 8.07 - Third Party Beneficiaries. This contract is strictly between
Am-Pac and T&P, and the T&P Shareholder and, except as specifically provided, no
director, officer, stockholder, employee, agent, independent contractor or any
other person or entity shall be deemed to be a third party beneficiary of this
Agreement.
Section 8.08 - Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof.
Section 8.09 - Survival; Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of three
months. All rights and obligations under this entire agreement shall be binding
upon and inure to the benefit of the heirs, executors, administrators and
assigns of the parties.
Section 8.10 - Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 8.11 - Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may enforced concurrently herewith, and no waiver by
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any party of the performance of any obligation by the other shall be construed
as a waiver of the same of any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this Agreement may
by amended by a writing signed by all parties hereto, with respect to any of the
terms contained herein, and say term or condition of this Agreement may be
waived or the time for performance may be extended by a writing signed by the
party or parties for whose benefit the provision in intended.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be extended by their respective officers, hereunto duly authorized, as of the
date first-above written.
ATTEST: Am-Pac International, Inc.
/s/ illegible /s/ illegible
------------------- -----------------------
Secretary or Assistant Secretary By: ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇▇
-------------------
▇▇▇▇▇ ▇▇
ATTEST: T&P Investments, Inc.
/s/ illegible /s/ illegible
--------------------- ------------------------
Secretary of Assistant Secretary By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
The T&P Shareholder
/s/ illegible
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
23
State of FLORIDA }
}
County of ORANGE }
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, for the above
stated purposes by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the President of T&P Investments, Inc., to
certify which witness my hand and seal of office on this the 17th of December,
1996.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for the
State of Florida
Commission #CC452632
Expires April 13, 1999
State of FLORIDA }
}
County of ORANGE }
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, for the
above stated purposes by ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of "Am-Pac", to certify
which witness my hand and seal of office on this the 17th of December, 1996.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for the
State of Florida
Commission #CC452632
Expires April 13, 1999
State of FLORIDA }
}
County of ORANGE }
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, for the above
stated purposes by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to certify which witness my hand and seal of
office on this the 17th of December, 1996.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public in and for the
State of Florida
Commission #CC452632
Expires April 13, 1999
24
