SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934.
Date of Report (Date of earliest event reported)June 3,1999
THE HARMAT ORGANIZATION, INC.
xact name of registrant as specified in its charter)
________________________Delaware______________________________
(State or Other Jurisdiction of Incorporation)
333-3501 11-2780723
(Commission File Number) (I.R.S. Employer Identification No.)
P.O. Box 549, Speonk, New York 11972
(Address of principal executive offices) (Zip Code)
(516) 234-2888
(Registrant's telephone number, including area code)
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ITEM 2. Acquisition or Disposition of Assets
On June 3, 1999 the Company acquired all of the issued and outstanding
shares of BarPoint.com, Inc. ("BarPoint") pursuant to an Acquisition Agreement
dated May 20, 1999. BarPoint will soon launch a new internet shopping portal web
site. The site, www.barpoint.com, will feature a patent-pending search engine
and software technology that allows consumers to use the standard UPC barcode
that appears on approximately 100 million retail items to search for product
specific information from the internet. Scheduled for launch in the fall of
1999, www.barpoint.com will offer consumers the opportunity to search for
product specific information and shop for products by entering any UPC barcode
number. The internet search results that BarPoint delivers are tailored for the
needs of the consumer and include manufacturer contact information, comparative
pricing from a variety of on-line sources, links to purchase the item from a
variety of e-commerce vendors and more. Unlike current search engines such as
Yahoo, Lycos or Excite which present broad results that may include information
the consumer is not looking for, BarPoint delivers product specific information
and affords the consumer immediate access to such information on both wired and
wireless internet devices.
The consideration for the acquisition was 6,634,042 shares of the
Company's common stock based upon a negotiated value of $1.90 per share. The
purchase price is subject to adjustment depending upon the value of certain of
the Company's assets at the date of Closing and over a 45 day period following
the Closing.
A group of investors headed by Matthew Schilowitz, a shareholder and
the President and Director of the Company, made a capital contribution to the
Company of 250,000 shares of FinancialWeb.com, Inc. (the "Fweb Stock") and
certain other assets. The Board of Directors of the Company have declared a
stock dividend of the Company's common stock to the Company's shareholders of
record on June 3, 1999 (excluding the shareholders of BarPoint who have received
the Company's common stock in the transaction). The number of shares to be
distributed in the dividend will be determined based upon the value of the Fweb
Stock over a 45 day period plus the agreed upon value of the other assets
contributed. No payment date has been established for the dividend but it is
expected to be
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in August or September 1999.
As part of the transaction the Company sold to Leigh Rothschild three
(3) shares of the Company's Class A Preferred Stock for a purchase price of
$10.00 per share. The Preferred Stock shall vote on a pari-pasu basis with the
Company's Stock. The Company has outstanding 1,000,000 Class A Warrants and
1,000,000 Class B Warrants (collectively, the "Warrants"). One share of
Preferred Stock shall be voted in accordance with the issuance of the Class A
Warrants and one share of Preferred Stock shall be voted in accordance with the
issuance of the Class B Warrants. The Preferred Stock shall be entitled to one
vote for each share of common stock issued upon exercise of the Warrants. So
long as the Warrants are outstanding and are not exercised, then the Preferred
Stock allocated to the Warrants shall have no vote. In the event the Warrants
are not exercised and expire by their terms, then the Preferred Stock shall be
canceled. The third share of Preferred Stock shall have 346,766 votes. In no
event will any of the Preferred Stock have any votes after five (5) years from
the date of issue.
As part of the acquisition the Company granted five (5) year options to
purchase 800,000 shares of the Company's commons stock at an exercise price of
$1.90 per share. BarPoint's management shall determine the distribution of such
options. Such options vest as follows: one-third (1/3) immediately after one
year from the date of Closing, one-third (1/3) after the second year from the
date of Closing, in the event BarPoint achieves 50% of its revenue projection of
$49,000,000 in such second year, and the balance of one-third (1/3) after the
third year from the date of Closing, in the event BarPoint achieves 50% of its
revenue projection of $179,000,000 in such third year. Projections referred to
herein are the Seller's April 1, 1999 business projections as presented to
Purchaser.
In connection with services rendered,the new consulting agreement and
guarantees issued by Matthew Schilowitz relating to collectability of certain
assets of the Company Mr. Schilowitz was awarded options to purchase an
aggregate of 190,615 shares at $1.90 per share, which options are exercisable
over a five (5) year period.
David W. Sass, a Director of the Company, is the father of Jeffrey W.
Sass, a founder and shareholder of BarPoint.
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McLaughlin & Stern, LLP, general counsel to the Company, is a shareholder of
BarPoint and received shares in the Company as part of the transaction. David W.
Sass is a member of said firm.
Audited financial statements of BarPoint and Pro Forma financial
statements combined will be filed by amendment.
In connection with the transaction the Company obtained the advice of
its investment banker as to the reasonablness from a financial point of view of
the foregoing transaction.
As part of the transaction, Messrs. Scott Prizer and David Eiten
resigned as Directors of the Company and Messrs. Leigh M. Rothschild and Jeffrey
W. Sass were elected to fill the vacancies created by such resignations. In
addition, Mr. Leigh M. Rothschild was appointed Chairman and Chief Executive
Officer and Mr. Jeffrey W. Sass was appointed Executive Vice President and
Secretary of the Company. In addition, the Company entered into three year
employment agreements with Leigh M. Rothschild and Jeffrey W. Sass and a three
year consulting agreement with Matthew Schilowitz at annual compensations of no
less than $200,000, $150,000 and $150,000 respectively.
As a result of the acquisition the Company intends to
change its name to BarPoint.com, Inc. and its trading symbol to
"BPNT", if available.
ITEM 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) Financial information to be filed by amendment.
(b) Pro Forma Financial information to be filed by amendment.
(c) Exhibits
1. Stock Purchase Agreement dated May 20, 1999.
2. Addendum to Stock Purchase Agreement dated June
1, 1999.
3. Employment Agreement with Leigh M. Rothschild.
4. Employment Agreement with Jeffrey W. Sass.
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5. Consulting Agreement with Matthew C.
Schilowitz.
6. Certificate of Amendment to the Certificate of
Incorporation of the Company authorizing the Series A
Preferred Stock.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE HARMAT ORGANIZATION, Inc.
(Registrant)
By:
Leigh M. Rothschild, Chairman
DATED: June 8, 1999
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement, dated as of the 20th day of May 1999 (this
"Agreement"), by and between The Harmat Organization, Inc., a Delaware
corporation, having an address at P.O. Box 549, Speonk, New York 11972
(hereinafter referred to as the "Purchaser") and the shareholders of
BarPoint.com, Inc., a Florida corporation whose names and addresses appear on
Exhibit A hereto (hereinafter referred to, collectively, as the "Sellers").
WITNESSETH
Whereas, the Sellers are the owners, in the aggregate, of 100 shares of
the common stock, $1.00 par value per share constituting all of the issued and
outstanding common stock (the "Common Stock"), of BarPoint.com, Inc., a Florida
corporation ("BarPoint"), having its principal place of business at 12864
Biscayne Boulevard, #262, North Miami, Florida 33181.
The Purchaser desires to acquire from the Sellers, and the Sellers
desire to sell and transfer to the Purchaser, the Common Stock, upon the terms
and conditions hereinafter set forth.
To accomplish such purposes and in consideration of the premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1. Sale and Transfer of Stock. Upon the terms and subject to the conditions of
this Agreement, the Sellers hereby agree to sell, assign, convey, transfer and
deliver on the Closing Date (as hereinafter defined) to the Purchaser 100 shares
of the Common Stock, representing 100% of BarPoint's issued and outstanding
common stock in consideration of the payment by the Purchaser of the Purchase
Price (as hereinafter defined) for the Common Stock. On the Closing Date, the
Sellers shall convey to the Purchaser the Common Stock free and clear of all
liens, claims, encumbrances, charges, restrictions or rights of others.
1.2. Purchase Price. The full and complete purchase price (the "Purchase Price")
shall consist of 6,634,040 shares of Purchaser's common stock (the "Purchaser's
Stock). For each share of Common Stock owned by each of the Sellers, Purchaser
shall issue to Sellers, 66,340.40 shares of Purchaser's Stock as set forth in
Exhibit A. No fractional shares shall be issued, with fractions rounded up. Such
Purchase Price shall be based on the value attributed to Purchaser of $5,000,000
at the closing of the transaction contemplated hereby, consisting of investment
securities of Financialweb.com, Inc. ("Financialweb") and Socket Communications,
Inc. ("Socket") (collectively, the "Investment Securities") having a value of no
less than $3,500,000, land having an appraised value of no less than $200,000, a
note in the amount of $150,000 due from
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Financialweb to Purchaser payable on or before December 31, 1999, a note in the
amount of $60,000 from the sale of property located in East Quogue, New York,
and cash of no less than $650,000, which includes $60,000 in the form of a
passbook pledge to the town of Southampton, N.Y. to insure certain performance,
which pledge will be released within 90 days from the date hereof. The release
of the passbook pledge is guaranteed by Matthew Schilowitz. For purposes of this
agreement, the Investment Securities consist of the preferred stock and warrants
of Socket and the stock and promissory note of Financialweb. The Purchase Price
is subject to adjustment as set forth in Section 1.2.1 (the "Purchase Price
Adjustment").
1.2.1 A "Purchase Price Adjustment" shall occur:
(a) In the event the value of the Investment
Securities at the time of closing is valued between $3,500,000
and $4,000,000, then the shareholders of Purchaser (other than
the Sellers) shall be entitled to receive additional shares
for any amount in excess of $3,500,000 of Purchaser's Stock at
the rate of $1.90 per share by way of stock dividend or other
equitable adjustment.
(b) In the event the value of the Investment
Securities at the time of closing, or the highest one day
price for 45 days thereafter, exceeds $4,000,000, then the
shareholders of Purchaser (other than the Sellers) shall
receive additional shares for any amount in excess of
$4,000,000 of Purchaser's Stock at the rate of $1.90 per share
for the first $500,000 as set forth in section 1.2.1 above and
at a rate of $3.80 per share for the remaining amount by way
of a stock dividend or other equitable adjustment.
(c) In the event the value of the Investment
Securities at the time of Closing shall be less than
$3,500,000 or the cash is less than $616,251.50. Purchaser
shall have 45 days from Closing to establish the value of the
Investment Securities based upon the highest 1 day value
during such 45 day period for such Investment Securities. In
the event the values of the securities are not brought to the
aforesaid amount than Sellers shall be entitled to additional
shares of Purchaser's Stock at the rate of $1.90 per share for
each dollar of reduced value. In the event Purchaser's note
receivable in the amount of $60,000 is collected in full the
Purchaser shall grant to Mr. Schilowitz the option to purchase
31,588 shares of Purchaser's common stock exercisable at a
price of $1.90 per share.
1.2.2 Purchaser shall use its best efforts to cause Financialweb and
Socket to cause the Investment Securities to be registered for sale with the
Securities and Exchange Commission.
1.3. Expenses. Whether or not the transactions contemplated by this Agreement
shall be consummated, each party hereto shall pay its or his own expenses
(including, without limitation, attorneys' and accountants' fees and
disbursements) incident to this Agreement and the transactions contemplated
hereby.
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1.4. Brokerage, Finder's Fees. With the exception of section 1.4.1 below, the
Sellers jointly and severally, on one hand, and the Purchaser, on the other
hand, represent and warrant to each other that no broker, finder, agent or
intermediary of any kind brought about the transactions contemplated by this
Agreement. However, if any broker fees are incurred each party shall pay its own
obligations thereunder.
1.4.1 Schilowitz Investment. In the event Matthew Schilowitz arranges,
prior to Closing, any financing for BarPoint, Mr Schilowitz shall be entitled to
a finder's fee of 5% of the funds raised ,payable in cash or stock at the option
of Mr. Schilowitz. The stock to be valued at the value of the financing
transaction. In addition, for services rendered Mr. Schilowitz shall receive
159,027 shares of the Purchaser's Stock at the closing of this transaction.
ARTICLE II
CLOSING
2.1. Closing Date. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on or before June 15,1999 (the
"Closing Date") or at such other time on such other date as the Sellers and the
Purchaser may mutually agree upon in writing.
2.2. Place of Closing. The Closing shall take place at the offices of McLaughlin
& Stern LLP., 260 Madison Avenue, 18th Floor. New York, New York 10016, or at
such other place as the Sellers and the Purchaser may mutually agree upon in
writing.
2.3. Certain Transactions to be Effected At, Prior to, or After Closing. Subject
in each case to the terms and conditions contained in this Agreement, the
following steps shall be taken at, prior to, or after the Closing, except as
otherwise expressly stated:
2.3.1. Symbol Technologies, Inc. ("Symbol") shall have made an
investment having an agreed upon value of $2,000,000 consisting of
$1,000,000 cash, $500,000 advertising allowance and $500,000 other
consideration for which it will receive 1,044,932 shares of Purchaser's
Stock. In the event Symbol is not ready to invest at the time of
Closing, then the parties agree to hold the shares allocated to Symbol.
2.3.1.(i). In the event Symbol does not invest, then the
shares allocated for Symbol shall be held for another investor
on the same terms and conditions as the Symbol investment. In
the event no investor is obtained within six (6) months from
the Closing of the transaction, then the shares allocated to
Symbol shall be distributed to the shareholders of Purchaser
(including Sellers) on a pari pasu basis.
2.3.2. Simultaneously with the execution of this Agreement, Purchaser
shall loan to BarPoint $250,000 against a two year promissory note, attached
hereto as Exhibit B, bearing interest at two points above the prime rate of
interest as designated by Chase Manhattan Bank,
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NA. Upon the execution of this promissory note, Purchaser shall receive 250,000
warrants underlying 250,000 shares of BarPoint Common Stock at a rate of $1.90
per share. Such warrants shall be exercisable for a period of three years and
shall terminate in the event of the earlier to occur of (i) the cancellation of
the promissory note, or (ii) the expiration of the three year term of the
warrants.
2.3.3 The Purchaser shall deliver, or cause to be delivered, to the
Sellers the following:
2.3.3.(i). Stock Certificates representing the Purchase Price
set forth in Exhibit A.
2.3.3.(ii). Corporate resolutions duly adopted by the Board of
Directors of the Purchaser, authorizing the execution,
delivery and performance of this Agreement, and all related
certificates executed and delivered in connection with the
transactions contemplated by this Agreement, duly certified by
the Secretary or an Assistant Secretary of the Purchaser, and
an incumbency certificate, certifying the names and true
signatures of the officers of the Purchaser authorized to
execute and deliver this Agreement.
2.3.3.(iii). Such other documents as shall reasonably be
requested by the Sellers in order to carry out the
transactions contemplated by this Agreement, duly executed by
the Purchaser where appropriate.
2.3.4 The Sellers shall deliver, or cause to be delivered, to the
Purchaser the following:
2.3.4.(i). Stock Certificates representing the Common Stock
set forth in Exhibit A.
2.3.4.(ii). Such other documents as shall reasonably be
requested by the Purchasers in order to carry out the
transactions contemplated by this Agreement, duly executed by
BarPoint or Sellers where appropriate.
2.3.5 Preferred Stock. At Closing Purchaser shall issue and sell to
Leigh Rothschild, or his designee, two shares of Purchaser's Class A Preferred
Stock, for a Purchase Price of $10 per share (the "Preferred Stock"). The
Preferred Stock shall vote on a pari-pasu basis with Purchaser's Stock.
Purchaser has outstanding 1,000,000 Class A Warrants and 1,000,000 Class B
Warrants (collectively, the "Warrants"). The Preferred Stock shall be entitled
to one vote for each share of common stock issued upon exercise of the Warrants.
So long as the Warrants are outstanding and are not exercised, then the
Preferred Stock shall have no vote. In the event the Warrants are not exercised
and expire by their terms, then the Preferred Stock shall be canceled.
2.3.6 Additional Investment. In the event that an additional investment
of up to $5,000,000 is made to Purchaser no later than two (2) months after
Closing, then the parties hereto shall take whatever steps are deemed necessary
and appropriate to accommodate such investment on identical terms with respect
to the valuation of Purchaser at a rate of $1.90 per share, or at such other
price per share as determined at Closing.
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2.3.7 Determination of Purchaser's Creation of a SBIC. In the event
Purchaser's newly elected Board of Directors (as determined pursuant to section
7.7 herein), determines that it is in the best interest of Purchaser to create a
Small Business Investment Company ("SBIC") and to raise no less than the minimum
required by the SBIC regulations for such purpose, then the parties hereto agree
that the Investment Securities then held by Purchaser shall be placed into a
newly formed wholly owned subsidiary, the stock of which subsidiary shall be
distributed to the shareholders of Purchaser, including the Sellers. The parties
hereto agree to use their best efforts to effectuate the creation of such SBIC.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
As an inducement to the Purchaser to enter into this Agreement, the
Sellers jointly and severally represent and warrant to the Purchaser and
acknowledge and confirm that the Purchaser is relying upon such representations
and warranties in connection with the execution and delivery of this Agreement,
notwithstanding any investigation made by it or otherwise on its behalf. The
representations and warranties shall be true, complete, and correct in all
material respects as if made on the Closing Date, that:
3.1. Corporate Organization and Good Standing. BarPoint is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida with full corporate power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby.
3.2. Capitalization. The entire authorized capital stock of BarPoint consists of
100 shares of common stock, $1.00 par value per share, of which 100 shares are
issued and outstanding. The Common Stock has been duly authorized and is validly
issued, fully paid and non-assessable, with no liability attaching to the
ownership thereof. Except as described in Exhibit C, there are no authorized,
outstanding or existing (i) voting trusts or other agreements or understandings
with respect to the voting of Common Stock or securities convertible into or
exchangeable for the Common Stock; (ii) options, warrants or other rights
(including, without limitation, preemptive rights) to purchase or subscribe for
any of the Common Stock, any authorized but unissued shares of the Common Stock
or any securities convertible into or exchangeable for the Common Stock; (iii)
agreements of any kind relating to the issuance of any of the Common Stock, any
such convertible or exchangeable securities or any such options, warrants or
rights; or (iv) agreements of any kind which may obligate BarPoint to issue or
purchase any of its securities. None of the Common Stock has been issued in
violation of any preemptive or other rights of stockholders.
3.3. Corporate Documentation. The Sellers will make available to the Purchaser
for review within ten (10) days of the execution of this Agreement, copies of
the Certificate of Incorporation and By-laws of BarPoint, including all
amendments thereto, all of which will be true, complete and correct as of the
date of delivery. The Sellers will cause BarPoint to make available for
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inspection by the Purchaser or its counsel, within ten (10) days of the
execution of this Agreement, the corporate minute and stock books of BarPoint.
3.4. Title to BarPoint Common Stock, Consents and Binding Effect. The Sellers
are now, and will at the Closing be, the sole record and beneficial owners of
the Common Stock, free and clear of any and all liens, mortgages, pledges,
conditional sale agreements, security interests, restrictions, claims, options,
encumbrances or rights of third parties of every kind and nature (individually,
a "Lien" and, collectively, "Liens"), and not subject to any options, proxies,
contracts, calls or other commitment. The Sellers now have the right to enter
into this Agreement, and will at the Closing have the full right, power and
authority to sell, transfer, assign and deliver to the Purchaser the Common
Stock, and the sale, transfer, assignment and delivery of the Common Stock under
this Agreement, will transfer to the Purchaser full and legal title to the
Common Stock free and clear of all Liens. This Agreement is a legal, valid and
binding agreement of the Sellers, enforceable against the Sellers in accordance
with its terms. Neither the execution and delivery of this Agreement, nor the
sale, transfer, assignment and delivery of the Common Stock under this Agreement
nor the performance of any other obligation of the Sellers under this Agreement,
will conflict with, result in the breach of, constitute a default under or
result in the creation of any Lien upon the Common Stock or upon BarPoint or any
of its assets under the terms of the Certificate of Incorporation or By-laws of
BarPoint, any Material Contract (as hereinafter defined), any restriction or
other instrument or agreement to which the Sellers or BarPoint is a party or by
which the Sellers or BarPoint or any of its assets may be bound or affected, or
any statute, ordinance, judgment, order, decree, regulation or rule of any court
or governmental body affecting or relating to the Sellers, BarPoint or any of
its assets or its business. No consent of, waiver from or notice to any other
party is required in order to maintain in full force and effect for the benefit
of the Purchaser all Material Contracts and the approvals, authorizations,
consents, licenses, orders, permits, intellectual property rights and other
rights of BarPoint existing and in effect immediately prior to the Closing.
3.5. Subsidiaries. BarPoint has no subsidiaries and does not directly or
indirectly own, of record or beneficially, any direct or indirect equity or
other interest or any right (contingent or otherwise) in any corporation,
partnership, joint venture or other business association or entity.
3.6. Minute Books and Stock Transfer Books. The minute books of BarPoint are
true, correct, complete and current in all respects and contain records of all
actions taken by its stockholders, Board of Directors and all committees of the
Board of Directors, and all signatures contained therein are the true signatures
of the persons whose signatures they purport to be. The stock transfer books of
BarPoint are true, correct, complete and current in all respects.
3.7 No Conflicts. The execution, delivery and performance of this Agreement by
Sellers and the consummation by Sellers of the transactions contemplated hereby
will not conflict with or result in the violation of the provisions of the
Articles of Incorporation or Bylaws of BarPoint.
3.8 Trademarks, Patents, Etc.
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(a) Exhibit D contains a true and complete list of all software patent,
patent applications, trade names, trademarks, service marks, trademark and
service mark registrations and applications, copyrights, copyright registrations
and applications, grants of a license or right to BarPoint with respect to the
foregoing, both domestic and foreign, claimed by either BarPoint or used or
proposed to be used by BarPoint in the conduct of its business, whether
registered or not, (collectively herein, "Registered Rights")
(b) Except as described in Exhibit D, BarPoint owns and has the
unrestricted right to use the Registered Rights and every trade secret,
know-how, process, discovery, development, design, technique, customer and
supplier list, promotional idea, marketing and purchasing strategy, invention,
process, confidential data and or other information (collectively herein,
"Proprietary Information") required for or incident to the design, development,
manufacture, operation, sale and use of all software products and services sold
or rendered or proposed. to be sold or rendered by BarPoint, free and clear of
any right, equity or claim of others. BarPoint has taken reasonable security
measures to protect the secrecy, confidentiality and value of all Proprietary
Information.
(c) There is no claim or demand of any person pertaining to, or any
Action that is pending or, to the Seller's knowledge, threatened, which
challenges the rights of BarPoint in respect of any Registered Right or any
Proprietary Information.
3.9 Indebtedness. At Closing, BarPoint shall have no liability, except for
liabilities in the ordinary course of business, or obligation for Indebtedness
(as hereinafter defined). No event has occurred and no condition has become
known to any of the Sellers (including the transactions contemplated hereby)
that constitutes or, with notice or passage of time, or both, would constitute a
default or a basis of force majeure or other claim of accelerated or increased
rights, termination, excusable delay or nonperformance by BarPoint or any other
person under any instrument or document relating to or evidencing Indebtedness
that would entitle any person to require BarPoint to pay any portion of the
principal amount of such Indebtedness prior to the scheduled maturity thereof.
No instrument or document evidencing, creating, securing or otherwise relating
to Indebtedness will require the consent of any person to or as a result of the
consummation of the transactions contemplated by this Agreement.
3.10 No Undisclosed Liabilities. Except as described in Exhibit E, BarPoint has
no liabilities, except for liabilities in the ordinary course of business,
whether accrued, absolute, contingent or otherwise, whether due or to become due
and whether the amounts thereof are readily ascertainable or not, or any
unrealized or anticipated losses from any commitments of a contractual nature,
with respect to or based upon the transactions or events occurring at or prior
to the Closing.
3.11 Compliance with Law. Through and including the date hereof, BarPoint (i)
has not violated or conducted its business or operations in violation of, and
has not used or occupied its properties or assets in violation of, any legal
requirement, (ii) to the Sellers knowledge, has not been alleged
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to be in violation of any legal requirement, and (iii) has not received any
notice of any alleged violation of, or any citation for noncompliance with, any
legal requirement.
3.12 Disclosure. No representation or warranty of Sellers in this Agreement and
no information contained in any exhibit or other writing delivered pursuant to
this Agreement or at the Closing contains or will contain any untrue statement
of a material fact or omits or will omit to state a material fact required to
make the statements herein or therein not misleading. There is no fact that the
any of the Sellers have not disclosed to Purchaser in writing that has had or,
insofar as any Seller can now foresee, may have a Material Adverse Effect on the
ability of any of the Sellers to perform fully this Agreement.
3.13 Investment Intent. Sellers are acquiring Purchaser's Stock for investment
purposes only, for their own account and not as a nominee or agent for any other
person, and not with a view to or for resale in connection with any distribution
thereof within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"). Except as contemplated by this Agreement, the Sellers agree
that (a) they will not offer, sell, pledge, hypothecate, or otherwise dispose of
the Purchaser's Stock unless such offer, sale, pledge, hypothecation or other
disposition is (i) registered under the Securities Act, or (ii) such offer,
sale, pledge, hypothecation or other disposition thereof does not violate the
Securities Act, and (b) the certificate(s) representing the Purchaser's Stock
shall bear a legend stating in substance:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER SAID ACT OR SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION DOES NOT VIOLATE THE PROVISIONS THEREOF OR UNLESS SOLD
PURSUANT TO RULE 144 PROMULGATED UNDER SAID ACT.
3.14 Material Contracts. Seller will not do any act, or omit to do any act,
which will cause a breach of any of its material commitments or obligations.
Sellers will comply with all laws, rules and regulations applicable to it and to
the conduct of its business and will fully perform all of its obligations under
all Material Contracts.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to, and covenants and agrees
with, each of the Shareholders that:
4.1 Organization and Good Standing. Purchaser has been duly organized and is
existing as a corporation in good standing under the laws of the State of
Delaware with full corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. Purchaser is duly
qualified to do business as a foreign corporation in each state where the
character of its properties or nature of its activities makes such qualification
necessary, other than those jurisdictions where the failure to so qualify would
not have a materially adverse impact on Purchaser
4.2. Capitalization. The entire authorized capital stock of Purchaser consists
of 25,000,000 shares of common stock and 5,000,000 shares of Preferred Stock,
each having a par value of $.001 per share, of which 2,612,500 shares of common
stock are issued and outstanding and no shares of Preferred Stock are issued and
outstanding. Purchaser's Stock has been duly authorized and is validly issued,
fully paid and non-assessable, with no liability attaching to the ownership
thereof. With the exception of (i) 400,000 shares of common stock underlying a
qualified option plan, of which 360,000 shares are subject to options, (ii)
1,000,000 shares of Class A and 1,000,000 shares of Class B Warrants, (iii)
75,000 Underwriter's Warrants, (iv) 500,000 options under an employment
agreement, and (v) 200,000 warrants held by Purchaser's Investment Banker. There
are no authorized, outstanding or existing: (i) voting trusts or other
agreements or understandings with respect to the voting of Purchaser's Stock or
securities convertible into or exchangeable for Purchaser's Stock; (ii) options,
warrants or other rights (including, without limitation, preemptive rights) to
purchase or subscribe for any of Purchaser's Stock, any authorized but unissued
shares of Purchaser's Stock or any securities convertible into or exchangeable
for Purchaser's Stock; (iii) agreements of any kind relating to the issuance of
any of Purchaser's Stock, any such convertible or exchangeable securities or any
such options, warrants or rights; or (iv) agreements of any kind which may
obligate Purchaser to issue or purchase any of its securities. None of
Purchaser's Stock has been issued in violation of any preemptive or other rights
of stockholders.
4.3 Purchaser's Stock, Consents and Binding Effect. The Purchaser's Stock to be
issued is free and clear of any and all liens, mortgages, pledges, conditional
sale agreements, security interests, restrictions, claims, options, encumbrances
or rights of third parties of every kind and nature (individually, a "Lien" and,
collectively, "Liens"), and not subject to any options, proxies, contracts,
calls or other commitment. The Purchaser now has the right to enter into this
Agreement, and will at the Closing have the full right, power and authority to
convey, transfer, assign and deliver to the Sellers shares of its common stock,
and the conveyance, transfer, assignment and delivery of the common stock under
this Agreement, will transfer to the Sellers full and legal title to Purchaser's
Stock free and clear of all Liens. This Agreement is a legal, valid and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance
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with its terms. Neither the execution and delivery of this Agreement, nor the
sale, transfer, assignment and delivery of the Common Stock under this Agreement
nor the performance of any other obligation of the Purchaser under this
Agreement, will conflict with, result in the breach of, constitute a default
under or result in the creation of any Lien upon the Purchaser's Stock or
Purchaser or any of its assets under the terms of the Certificate of
Incorporation or By-laws of Purchaser, any Material Contract (as hereinafter
defined), any restriction or other instrument or agreement to which the
Purchaser is a party or by which the Purchaser or any of its assets may be bound
or affected, or any statute, ordinance, judgment, order, decree, regulation or
rule of any court or governmental body affecting or relating to the Purchaser or
any of its assets or its business. No consent of, waiver from or notice to any
other party is required in order to maintain in full force and effect for the
benefit of the Sellers all Material Contracts and the approvals, authorizations,
consents, licenses, orders, permits, Intangible Rights (as hereinafter defined)
and other rights of Purchaser existing and in effect immediately prior to the
Closing.
4.4 No Conflicts. The execution, delivery and performance of this Agreement by
Purchaser and the consummation by Purchaser of the transactions contemplated
hereby will not conflict with or result in the violation of the provisions of
the Articles of Incorporation or Bylaws of Purchaser.
4.5 Investment Intent. Purchaser is acquiring the Common Stock for investment
purposes only, for its own account and not as a nominee or agent for any other
person, and not with a view to or for resale in connection with any distribution
thereof within the meaning of the Securities Act.
4.6 Indebtedness. Except for liabilities in the ordinary course of business, at
Closing, Purchaser shall have no liabilities (excluding sums owed to Purchaser's
Investment Banker), or obligation for Indebtedness (as hereinafter defined), in
an aggregate dollar value in excess of $10,000. No event has occurred and no
condition has become known to Purchaser (including the transactions contemplated
hereby) that constitutes or, with notice or passage of time, or both, would
constitute a default or a basis of force majeure or other claim of accelerated
or increased rights, termination, excusable delay or nonperformance by Purchaser
or any other person under any instrument or document relating to or evidencing
Indebtedness that would entitle any person to require Purchaser to pay any
portion of the principal amount of such Indebtedness prior to the scheduled
maturity thereof. No instrument or document evidencing, creating, securing or
otherwise relating to Indebtedness will require the consent of any person to or
as a result of the consummation of the transactions contemplated by this
Agreement.
4.7 Financial Information. Simultaneously herewith, the Purchaser will deliver
to the Sellers the audited financial statements for the year ended September 30,
1998 of Purchaser (the "Financial Statements") and will deliver the unaudited
financial statements for the period ended March 31, 1998 of Purchaser ("the
Interim Financial Statements"). The Financial Statements have been prepared and
the Interim Financial Statements are to be furnished by Purchaser pursuant to
and in accordance with GAAP applied on a consistent basis, are or will be
correct and complete in all material respects and present or will present fairly
the financial position of Purchaser as of the dates of such statements and the
results of operations and changes in financial position for the periods covered
by such statements. Such financial statements do not and will not reflect any
unusual, nonrecurring or special items, except to the extent specifically
identified as such in the
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Financial Statements and reflect fairly all of the obligations of the Purchaser.
The Purchaser has no liabilities, direct or indirect, accrued, absolute,
contingent or otherwise, other than those set forth or reserved against in the
Financial Statements, or incurred since the date of the Financial Statements in
the ordinary course of business. In addition, Purchaser represents and warrants
that it has completed its Annual Report on Form 10-K for the year ended
September 30, 1998 pursuant to and in accordance with the Securities and
Exchange Act of 1934, and has relied on the audited financial statements for the
year ended September 30, 1998 which have been prepared pursuant to and in
accordance with GAAP applied on a consistent basis, and such annual report on
Form 10-K is correct and complete in all material respects and presents fairly,
the Purchaser's business and the financial position of Purchaser as of the dates
of such statements and the results of operations and changes in financial
position for the periods covered by such statements.
4.8 Income and Other Taxes.
(a) All Tax Returns required to be filed through and including the date
hereof in connection with the operations of the Purchaser are true, complete and
correct in all respects and have been properly and timely filed. Purchaser has
not requested any extension of time within which to file any Tax Return, which
Tax Return has not since been filed. Sellers have heretofore been furnished by
Purchaser with true, correct and complete copies of each Tax Return of the
Purchaser with respect to the past three taxable years, and of all reports of,
and communications from, any Governmental Entities relating to such period.
Purchaser has disclosed on its Federal income Tax Returns all positions taken
therein that could give rise to a substantial understatement of income Taxes for
federal income tax purposes within the meaning of Code Section 6662.
(b) All Taxes required to be paid or withheld and deposited through and
including the date hereof in connection with the operations of Purchaser have
been duly and timely paid or deposited by Purchaser. Purchaser has properly
withheld or collected all amounts required by law for income Taxes and
employment Taxes relating to its employees, creditors, independent contractors
and other third parties, and for sales Taxes on sales, and has properly and
timely remitted such withheld or collected amounts to the appropriate
Governmental Entity. Purchaser has no liabilities for any Taxes for any taxable
period ending prior to or coincident with the Closing Date.
(c) Purchaser has made adequate provision on its book of account for
all Taxes with respect to its business, properties and operations through the
date of its Financial Statements, and the accruals for Taxes in the Financial
Statements are adequate to cover all liabilities for Taxes of Purchaser for all
periods ending on or before the Closing Date. The Purchaser is currently
contesting certain real estate taxes.
(d) Purchaser has never (i) had a tax deficiency proposed, asserted or
assessed against it (ii) executed any waiver of any statute of limitations on
the assessment or collection of any Taxes, or (iii) been delinquent in the
payment of any Taxes.
(e) No Tax Return of Purchaser has been audited or the subject of other
Action by any Governmental Entity. Purchaser has not received any notice from
any Governmental Entity of any pending examination or any proposed deficiency,
addition, assessment, demand for payment or
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adjustment relating to or affecting Purchaser or its assets or properties and no
shareholder of Purchaser has reason to believe that any Governmental Entity may
assess (or threaten to assess) any Taxes for any periods ending on or prior to
the Closing Date.
4.9 Material Contracts. Purchaser will not do any act, or omit to do any act,
which will cause a breach of any of its material commitments or obligations.
Purchaser will comply with all laws, rules and regulations applicable to it and
to the conduct of its business and will fully perform all of its obligations
under all Material Contracts.
4.10 No Conflicts. The exeution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not conflict with
or result in a breach or violation of any term or provision , or (with or
without notice or passage of time, or both) constitute a default under, any
indenture, mortgage, deed of trust, trust (constructive and other), loan
agreement or other agreement or instrument to which Purchaser is a party or by
which Purchaser is bound, or violate any legal requirement applicable to or
binding upon the Purchaser. The Purchaser is in full compliance with respect to
all rules, laws and regulations to which it is subject.
ARTICLE V
PRE-CLOSING COVENANTS
The parties hereby covenant and agree that from and after the signing
of this Agreement to and including the Closing Date the parties have done or
have refrained from doing, and shall, or shall cause the parties to, do or
refrain from doing, the following actions (none of which shall be taken without
the prior approval of each party, which approval will not be unreasonably
withheld):
5.1. Full Access. The parties and their authorized representatives shall have
full access during normal business hours to all properties, assets, books,
records, contracts and documents of the other party and shall furnish or cause
to be furnished to each other party and its authorized representatives all
information with respect to the assets, liabilities, business, customers,
suppliers and creditors of each party as they may reasonably request. The
parties and their authorized representatives shall also be entitled from time to
time to consult and communicate with the independent accountants of each party
as well as with lenders and lessors to, and suppliers and customers of, each
party.
5.2. The parties will maintain its books, accounts and records in the usual,
regular and ordinary manner, on a basis consistent with prior practices.
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ARTICLE VI
CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS
All obligations of the Purchaser under this Agreement are subject to
the fulfillment of each of the following conditions, unless otherwise waived,
prior to or at the Closing:
6.1. Representations and Warranties. All of the representations, warranties and
certifications of the Sellers contained in this Agreement or in any document,
exhibit, schedule or certificate furnished pursuant hereto or in connection
herewith shall be true, correct and complete in all material respects on the
Closing Date as though all such representations, warranties and certifications
were made and given on and as of the Closing Date.
6.2. Performance by the Sellers. The Sellers shall have performed and complied
with all covenants, agreements and conditions required to be performed or
complied with by them pursuant to this Agreement prior to or at the Closing.
6.3. No Restraint on Transactions. There shall be no effective injunction,
judgment, decree, restraining order or order of any nature issued against the
Sellers by a court or government agency of competent jurisdiction which shall
direct that this Agreement or any of the transactions contemplated by this
Agreement not be consummated as herein provided.
6.4. Due Diligence Examination. The Purchaser and its representatives shall have
completed and shall be reasonably satisfied with the results of a due diligence
examination of BarPoint, including, without limitation, an examination of all
documents required to be furnished by or on behalf of the Sellers on or after
the date hereof and an examination of the contents of all exhibits hereto.
6.5. No Material Adverse Change. Since the date of the Financial Statements,
there shall not have been any material adverse change in the financial
condition, results of operations, business, prospects, assets or liabilities of
BarPoint from that reflected in the Financial Statements.
6.6. Third Party Consents. The Purchaser shall have received consents, estoppels
and authorizations, in form and substance reasonably satisfactory to the
Purchaser, from all parties, including, without limitation, any existing lenders
and lessors to and other creditors of BarPoint and its Affiliates, whose consent
or authorization is required in order for the transactions contemplated by this
Agreement to be consummated.
6.7. Compensation Arrangements. The Purchaser shall enter into acceptable
compensation arrangements with Leigh Rothschild, Matthew Schilowitz and Jeffrey
W. Sass, respectively, as Chairman of the Board, President and Executive Vice
President (collectively referred to as the "Compensation Arrangement"). The
Compensation Arrangement shall provide for annual compensation of no less than
$200,000, $150,000 and $150,000, respectively.
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ARTICLE VII
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
All obligations of the Sellers under this Agreement are subject to the
fulfillment of each of the following conditions, unless otherwise waived prior
to or at the Closing:
7.1. Representations and Warranties. All of the representations and warranties
of the Purchaser contained in this Agreement or in any document, exhibit,
schedule or certificate furnished pursuant hereto or in connection herewith
shall be true, correct and complete in all respects on the Closing Date, as
though all such representations and warranties were made and given on and as of
the Closing Date.
7.2. Performance by the Purchaser. The Purchaser shall have performed and
complied with all covenants, agreements and conditions required to be performed
or complied with by the Purchaser pursuant to this Agreement prior to or at the
Closing.
7.3. No Restraint on Transactions. There shall be no effective injunction,
judgment, decree, restraining order or order of any nature issued against the
Purchaser by a court or government agency of competent jurisdiction which shall
direct that this Agreement or any of the transactions contemplated by this
Agreement not be consummated as herein provided.
7.4. Due Diligence Examination. The Sellers and its representatives shall have
completed and shall be reasonably satisfied with the results of a due diligence
examination of Purchaser, including, without limitation, an examination of all
documents required to be furnished by or on behalf of the Purchaser on or after
the date hereof and an examination of the contents of all exhibits hereto.
7.5. Third Party Consents. The Sellers shall have received consents, estoppels
and authorizations, in form and substance reasonably satisfactory to the
Sellers, from all parties, including, without limitation, any existing lenders
and lessors to and other creditors of the Purchaser and its Affiliates whose
consent, estoppel or authorization is required in order for the transactions
contemplated by this Agreement to be consummated or whose consent, estoppel or
authorization is deemed appropriate by the Sellers.
7.6. Compensation Arrangements. The Purchaser shall enter into acceptable
compensation arrangements with Leigh Rothschild, Matthew Schilowitz and Jeffrey
W. Sass, respectively, as Chairman of the Board, President and Executive Vice
President (collectively referred to as the "Compensation Arrangement"). The
Compensation Arrangement shall provide for annual compensation of no less than
$200,000, $150,000 and $150,000, respectively.
7.7 Board of Directors. BarPoint representatives will be elected to the Board
of Directors of Purchaser and the existing Board of Directors shall resign. For
a period of two (2) years from the Closing, the initial Board of Directors shall
consist of seven (7) persons, three (3) of whom shall be the designee of
BarPoint, two (2) of whom shall be the designee of Purchaser, and (1) of
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whom shall be the designee of Symbol, and the remaining director to be chosen by
the designated directors.
7.7.1 The Board of Directors of Purchaser shall have granted 5 year
options to purchase an aggregate of 800,000 shares at an exercise price
of $1.90 per share. BarPoint's management shall determine such
distribution of such options. The options shall vest as follows:
7.7.1(i) One-third (1/3) immediately after one year from the date of
Closing, one-third (1/3) after the second year from the date of
Closing, in the event BarPoint achieves 50% of its revenue projection
of $49,000,000 in such second year, and the balance of one-third (1/3)
after the third year from the date of Closing, in the event BarPoint
achieves 50% of its revenue projection of $179,000,000 in such third
year. Projections referred to herein are the Seller's April 1, 1999
business projections as presented to Purchaser.
7.7.1(ii) The options shall be distributed to the management
of BarPoint in such manner as the BarPoint directors shall determine.
ARTICLE VIII
POST-CLOSING COVENANTS
8.1. Non-Disclosure. From and after the Closing, the Sellers shall not disclose
or furnish to any other person, firm or corporation, except to the extent
required by law or by order of any court or governmental agency or to the extent
such disclosure is reasonably necessary to conduct the business of BarPoint, (a)
any information relating to any process, technique or procedure used by
BarPoint; or (b) any information relating to the operations or financial status
of BarPoint, including, without limitation, all financial data and sources of
financing, which is not specifically a matter of public record; or (c) any
information of a confidential nature obtained as a result of any prior, present
or future relationship with BarPoint, which is not specifically a matter of
public record; or (d) any trade secrets of BarPoint; or (e) the name, address or
other information relating to any customer or supplier of BarPoint.
8.2. Name Change of Purchaser. Immediately after the Closing, the parties will
take all necessary steps to change the name of Purchaser to BarPoint.com, Inc.
ARTICLE IX
INDEMNIFICATION BY THE SELLERS
9.1. Indemnification. The Sellers jointly and severally agree to indemnify and
hold the Purchaser harmless from and against any and all loss, damage,
liability, cost and expense (including, without limitation, reasonable attorneys
fees and disbursements), directly or indirectly incurred or suffered by, or
asserted against, the Purchaser as a result of or arising out of or in
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connection with any of the events (hereinafter referred to as "Indemnity
Events") described in Section 9.2. below; provided, however, that the Purchaser
shall be entitled to indemnification hereunder only to the extent the aggregate
of all losses, damages, liabilities, costs and expenses, directly or indirectly
incurred or suffered by, or asserted against, the Purchaser as a result of or
arising out of or in connection with any Indemnity Events exceeds $100,000;
except for claims of workers' compensation unless they exceed $250,000 in the
aggregate. The total claims shall not exceed the Purchase Price for the
Purchased Shares.
9.2. Indemnity Events. For the purposes of this Agreement, the term "Indemnity
Event" means any of the following:
9.2.1. Breach of Representation or Warranty. Any loss, damage,
liability, cost, expense or exposure resulting from any
misrepresentation, omission, breach of warranty, nonfulfillment, breach
or violation of any covenant, condition, obligation or agreement on the
part of any of the Sellers under this Agreement, or any certificate to
be furnished pursuant hereto or in connection herewith;
9.3. Defense and Settlement of Claims. If any claim, demand, liability, suit,
action or proceeding on account of an Indemnity Event shall be asserted or
instituted against the Purchaser, the Purchaser shall permit the Sellers to
defend the same at the Sellers' expense and to effect settlement or compromise
thereof, provided that the Purchaser shall have the right to participate in such
defense with counsel of its own choosing at its expense and to approve in
advance such settlement or compromise, and provided further that if the Sellers
fail to advise the Purchaser as to what action (i.e., negotiate a settlement or
defend) the Sellers will take with respect to any such matter at least ten (10)
days prior to the date when any such action is required to be taken, then the
Purchaser may take whatever action it deems advisable at the expense of the
Sellers.
ARTICLE X
INDEMNIFICATION BY PURCHASER
10.1. Indemnification. The Purchaser agrees to indemnify and hold the Sellers
harmless from and against any and all loss, damage, liability, cost and expense
(including, without limitation, reasonable attorneys fees and disbursements),
directly or indirectly incurred or suffered by, or asserted against, the Sellers
as a result of any material misrepresentation, omission, breach of warranty,
nonfulfillment, breach or violation of any covenant, condition, obligation or
agreement on the part of the Purchaser under this Agreement, or any certificate
to be furnished pursuant hereto or in connection herewith; and all actions,
suits, proceedings, demands, assessments, judgments, costs and expenses incident
to the foregoing.
10.2. Defense and Settlement of Claims. If any claim, demand, liability, suit,
action or proceeding on account of any matter giving rise to a claim of
indemnity under Section 10.1 shall be asserted or instituted against the
Sellers, the Sellers shall permit the Purchaser to defend the same at the
Purchaser's expense and to effect settlement or compromise, thereof, provided
that
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prior to assuming any such defense or effecting any such settlement or
compromise, the Purchaser shall have provided security satisfactory to the
Sellers with respect to such claim, demand, liability, suit, action or
proceeding and that the Sellers shall have the right to participate in such
defense with counsel of their own choosing at their own expense and to approve
in advance such settlement or compromise, and provided further that if the
Purchaser fails to advise the Sellers as to what action (i.e., negotiate a
settlement or defense) the Purchaser will take with respect to any such matter
at least ten (10) days prior to the date when any such action is required to be
taken, then the Sellers may take whatever action they deem advisable at the
expense of the Purchaser.
ARTICLE XI
TERMINATION AND WAIVER
11.1. Termination. This Agreement may be terminated at any time prior to the
Closing:
11.1.1. by the Purchaser or Seller if, between the date hereof and the
time scheduled for the Closing, an event or condition occurs that has
resulted in or that may be expected to result in a Material Adverse
Effect (as defined herein) or an inability to satisfy any condition to
Closing set forth in Articles II, III and V herein; or
11.1.2. by the Sellers or the Purchaser if the Closing shall not have
occurred by June 15, 1999; provided, however, that the right to
terminate this Agreement under this Article XI shall not be available
to any party whose failure to fulfill any obligation under this
Agreement shall have been the cause of, or shall have resulted in, the
failure of the Closing to occur on or prior to such date; or
11.1.3. by either the Purchaser or the Sellers in the event that any
Governmental Authority shall have issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement and such order, decree,
ruling or other action shall have become final and nonappealable; or
11.1.4. by the mutual written consent of the parties hereto.
11.2. Definitions.
11.2.1. For purposes of this Article XI, a "Material Adverse Effect"
shall mean any circumstance, change in, or effect on the business of
BarPoint or the Purchaser that, individually or in the aggregate with
any other circumstances, changes in, or effects the business of
BarPoint or the Purchaser or: (a) is, or could be, materially adverse
to the business, operations, assets or Liabilities (as defined below),
employee relationships, customer or supplier relationships, prospects,
results of operations or the condition (financial or otherwise) of
BarPoint or the Purchaser or (b) could adversely affect the ability of
Purchaser or BarPoint to operate or conduct their business in the
manner in which it is currently operated or conducted.
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11.2.2 "Indebtedness" shall mean, when used with reference to any
person, without duplication, (i) any liability of such person created
or assumed by such person, or any subsidiary thereof, (a) for borrowed
money, (b) evidenced by a bond, note, debenture or similar instrument
(including a purchase money obligation, deed of trust or mortgage)
given in connection with the acquisition of, or exchange for, any
property or assets (other than inventory or similar property acquired
and consumed in the ordinary course of business), including securities
and other Indebtedness, (c) in respect of letters of credit issued for
such person's account and "swaps" of interest and currency exchange
rates (and other interest and currency exchange rate hedging
agreements) to which such person is a party or (d) for the payment of
money as lessee under leases that should be, in accordance with
generally accepted accounting principles, recorded as capital leases
for financial reporting purposes; (ii) any liability of others
described in the preceding clause (i) guaranteed as to payment of
principal or interest by such person or in effect guaranteed by such
person through an agreement, contingent or otherwise, to purchase,
repurchase or pay the related Indebtedness or to acquire the security
therefor; (iii) all liabilities or obligations secured by a Lien upon
property owned by such person and upon which liabilities or obligations
such person customarily pays interest or principal, whether or not such
person has not assumed or become liable for the payment of such
liabilities or obligations; and (iv) any amendment, renewal, extension,
revision or refunding of any such liability or obligation; provided,
however, that Indebtedness shall not include any liability for
compensation of such person's employees or for inventory or similar
property acquired and consumed in the ordinary course of business or
for services.
11.2.3 "Liabilities" means any and all debts, liabilities and
obligations, whether accrued or fixed, absolute or contingent, matured
or unmatured or determined or undeterminable, including without
limitation, those arising under any law, action or governmental order
and those arising under any contract, agreement, arrangement,
commitment or undertaking
11.2.4 "Material Contract" shall mean any contract, agreement,
understanding, arrangement or commitment that (i) involves performance
by any party more than 15 days from the date hereof, (ii) involves
payments or receipts by the Company in excess of $5,000, (iii) involves
capital expenditures in excess of $5,000, or (iv) otherwise materially
affects the parties.
11.3. Effect of Termination. In the event of termination of this Agreement as
provided in Article XI and I, this Agreement shall forthwith become void and
there shall be no liability on the part of either party hereto except (a) as set
forth in Article XII and (b) that nothing herein shall relieve either party from
liability for any breach of this Agreement.
11.4. Waivers, Payment of Fees, Legal Counsel.
11.4.1 The parties hereto have requested the firm of McLaughlin &
Stern, LLP to prepare and be responsible for all legal matters in connection
with the foregoing transactions. Each party hereto hereby waives the right to
have their own counsel represent them in this transaction. The terms of this
transaction has been negotiated by the principals of Purchaser and BarPoint and
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McLaughlin & Stern, LLP is performing the function of recording the
understanding of the parties. The parties further acknowledge that David W.
Sass, a member of said firm, is a Director of Purchaser and the holder of
certain stock options. The parties further acknowledge that David W. Sass is the
father of Jeffrey W. Sass, an officer and shareholder of BarPoint. The parties
further confirm that McLaughlin & Stern, LLP has purchased from BarPoint 1.2
shares of common stock at the closing of this transaction for a purchase price
of $10.00 per share. Purchaser will be responsible for the payment of all legal
fees of McLaughlin & Stern, LLP in this transaction.
11.4.2 The Purchaser may (a) extend the time for the performance of any
of the obligations or other acts of the Sellers hereunder, (b) waive any
inaccuracies in the representations and warranties of the Sellers contained
herein or in any document delivered by the Sellers pursuant hereto or (c) waive
compliance with any of the agreements or conditions of the Sellers contained
herein. The Sellers may (a) extend the time for the performance of any of the
obligations or other acts of the Purchaser hereunder, waive any inaccuracies in
the representations and warranties of the Purchaser contained herein or in any
document delivered by the Purchaser pursuant hereto or (c) waive compliance with
any of the agreements or conditions of the Purchaser contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by the party to be bound thereby. Any waiver of any term or condition
shall not be construed as a waiver of any subsequent breach or a subsequent
waiver of the same term or condition. or a waiver of any other term or
condition, of this Agreement. The failure of any party to assert any of its
rights hereunder shall not constitute a waiver of any of such rights.
ARTICLE XII
MISCELLANEOUS
12.1. Survival of Representations and Warranties. All covenants, agreements,
statements, certifications, indemnifications, representations and warranties
made by the Sellers or the Purchaser in this Agreement or in any document,
exhibit, schedule or certificate furnished pursuant hereto or in connection
herewith, shall survive the Closing, irrespective of any investigation made by
or on behalf of any party, for a period of six (6) months. Any claim made in
writing prior to the expiration of the applicable period and the rights of
indemnity with respect thereto shall survive such expiration until resolved or
judicially determined.
12.2. Notices. All notices, requests, demands and other communications required
or permitted to be given hereunder shall be in writing and shall be deemed to
have been given when received, if delivered in person, or three (3) business
days following the mailing thereof, if mailed by certified first class mail,
postage prepaid, return receipt requested, as follows:
If to the Sellers, to:
BarPoint.com, Inc.
12864 Biscayne Boulevard #262
North Miami, Florida 33181
19
<PAGE>
with a copy to:
McLaughlin & Stern, LLP.
260 Madison Avenue
New York, New York 10016
Attention: David W. Sass, Esq.
if to the Purchaser, to:
The Harmat Organization, Inc.
22 Old Country Road
P.O. Box 539
Quogue, New York 11959
or at such other address or addresses as any party may have advised in the
manner provided in this Section 12.2.
12.3. Complete Agreement. This Agreement, together with its exhibits and
schedules, sets forth the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements, contracts, promises,
representations, warranties, statements, arrangements and understandings, if
any, among the parties hereto or their representatives. No waiver, modification
or amendment of any provision, term or condition hereof shall be valid unless in
writing and signed by the party to be charged therewith and any such waiver,
modification or amendment shall be valid only to the extent therein set forth.
12.4. Further Assurances. Each of the parties hereto shall, from time to time
after the Closing, upon the request of the other party hereto and at the expense
of such requesting party, duly execute, acknowledge and deliver or cause to be
duly executed, acknowledged and delivered, all such further instruments and
documents reasonably required to further effectuate the intents and purposes of
this Agreement.
12.5. Confidentiality. The parties hereto agree that they will maintain in
strict confidence all confidential information disclosed to one another, except
that, subsequent to the Closing, the Purchaser shall not be so obligated
hereunder with respect to any information with respect to BarPoint. Such
confidential information will be disseminated only to those officers, employees
and agents of the Purchaser and BarPoint whose duties justify a "need to know"
and then only for the purpose of evaluation of the assets, liabilities and
business of one another in furtherance of the transactions contemplated in this
Agreement. Notwithstanding the foregoing, the Purchaser may disclose any such
confidential information to its financial sources, but only on a confidential
basis. Any disclosures deemed required shall as a prerequisite require a
confidentiality agreement by the person to whom disclosure is intended.
12.6. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
12.7. Separability. Any provision of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be
20
<PAGE>
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.8. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which taken together shall
constitute a single agreement.
12.9. Captions. The captions appearing in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope and intent of this Agreement or any of the provisions hereof.
21
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
The Harmat Organization, Inc. (Sellers)
(Purchaser)
-----------------------------
By:______________________ LEIGH ROTHSCHILD (9.4485 shares)
Name: Matthew Schiolowitz
President IRREVOCABLE TRUST NO.III
By:___________________________
JAY HOWARD LINN, Trustee
(77.4796 shares)
-----------------------------
LORRAINE JAHN (1.8897 shares)
-------------------------------
JAY HOWARD LINN (0.4720 shares)
------------------------------
KENNETH ROTHSCHILD (2.3626
shares)
ROTHSCHILD CHILDREN'S
PRESENT INTEREST TRUST
By:____________________________
JAY HOWARD LINN (2.3626
shares)
------------------------------
JEFFREY SASS (3.5 shares)
MCLAUGHLIN & STERN, LLP
By:_____________________________
DAVID W. SASS (1.2 shares)
PENN COMPUTER SOLUTIONS
By:___________________________
THOMAS TEATES (1.2850 shares)
This Addendum dated June 1, 1999 to that certain Stock Purchase
Agreement dated May 20, 1999 (the "Agreement") by and between The Harmat
Organization, Inc., a Delaware corporation, having an address at P.O. Box 549,
Speonk, New York 11972 (hereinafter referred to as the "Purchaser") and the
shareholders of BarPoint.com, Inc., a Florida corporation whose names and
addresses appear on Exhibit A (hereinafter referred to, collectively, as the
"Sellers") is made between The Harmat Organization, Inc. as Purchaser and Leigh
Rothschild on behalf of the Sellers and BarPoint.com, Inc. For purposes hereof
the definitions referred to in the Agreement shall have the same meaning herein.
Whereas, Purchaser has informed Sellers that as a result of a certain
transaction Purchaser will be receiving additional assets consisting of the
following:
(a) cash payment of the net amount of approximately
$170,000 due to be paid on or before December 31,
1999 by Matthew Schilowitz (the "Cash Payment").
(b) warrants to purchase 60,000 shares of common stock of
Socket Communications, Inc. (the "Socket Warrants")
having an agreed value of $10,572.
(c) 250,000 shares of common stock of Financialweb (the "Web Stock").
The Cash Payment, Socket Warrants and Web Stock are hereinafter sometimes
collectively referred to as the "Additional Value".
Whereas, Purchaser and Sellers desire to amend the Agreement in certain
respects.
Now therefore, for valuable consideration hereby acknowledged and
received, the parties hereto agree as follows:
1. At the Closing of the Agreement, Purchaser shall establish a record
date of shareholders, excluding the shares of Purchaser's Stock to be issued to
Sellers (the "Record Date"). The Record Date will determine the shareholders of
Purchaser ("Purchasers' Shareholders") entitled to the stock dividend referred
to in paragraph 2 hereof.
2. With respect to the Additional Value, the parties hereto agree as
follows:
(a) For the Cash Payment, the Purchasers' Shareholders shall
be entitled to receive 89,474 shares of Purchaser's common stock.
(b) For the Socket Warrants, the Purchasers' Shareholders
shall be entitled to receive 723 shares of Purchaser's common stock.
(c) For the Web Stock, the Purchasers' Shareholders shall be entitled to receive
a
<PAGE>
number of shares of Purchaser's common stock determined as follows: the Web
Stock shall be assigned a per share value based on the lowest trading price of
the Web Stock during any 10 day consecutive period during the 45 day period
following the Closing under the Agreement. Such per share price shall be
multiplied by the number of shares of the Web Stock. Such value shall then be
discounted by 35% and the resulting number shall be divided by $9.50 to
determine the number of Purchaser's common stock. As an example, if the Web
Stock per share price were $15 then the number of Purchaser's common stock would
be 15 x 250,000=3,750,000 discounted by 35%(1,312,500) or 2,437,500 divided by
9.50= 256,579 shares. For purposes of the forgoing, in no event shall the per
share price of the Web Stock exceed $20 per share.
(d) The shares of Purchaser's common stock determined paragraph 2 (a),
(b) and (C) and paragraph 1.2.1 are hereinafter referred to as the "Dividend
Stock". As soon as the Dividend Stock is determined, the Dividend Stock shall be
distributed to the Purchasers' Shareholders. No fractional shares shall be
issued, but fractions shall be rounded up.
(e) The Sellers hereby waive any right to the Dividend Stock. In
addition, Purchaser shall not utilize the Additional Value to cover any
shortfall in the value attributed to Purchaser in the Agreement, as the same
relates to the 175,000 shares of Financialweb.com andthe preferred stock and
warrants of Socket and the cash..
3.Paragraph 1.4.1 of the Agreement is hereby amended to read as follows:
"1.4.1 Schilowitz Investment. In the event Matthew Schilowitz arranges,
prior to Closing, any financing for BarPoint, Mr Schilowitz shall be entitled to
a finder's fee of 5% of the funds raised ,payable in cash or stock at the option
of Mr. Schilowitz. The stock to be valued at the value of the financing
transaction. In addition, for services rendered Mr. Schilowitz shall receive an
option to purchase 159,027 shares of the Purchaser's Stock exercisable at $1.90
per share, which option shall be for a five year period from the Closing of this
transaction".
4. Paragraph 2.3.5 of the Agreement is hereby amended to read as
follows:
"2.3.5 Preferred Stock. At Closing Purchaser shall issue and sell to Leigh
Rothschild, or his designee, three shares of Purchaser's Class A Preferred
Stock, for a Purchase Price of $10 per share (the "Preferred Stock"). The
Preferred Stock shall vote on a pari- pasu basis with Purchaser's Stock.
Purchaser has outstanding 1,000,000 Class A Warrants and 1,000,000 Class B
Warrants (collectively, the "Warrants"). One share of Preferred Stock shall be
voted in accordance with the issuance of the Class A Warrants and one share of
Preferred Stock shall be voted in accordance with the issuance of the Class B
Warrants. The Preferred Stock shall be entitled to one vote for each share of
common stock issued upon exercise of the Warrants. So long as the Warrants are
outstanding and are not exercised, then the Preferred Stock allocated to the
Warrants shall have no vote. In the event the Warrants are not exercised and
expire by their terms, then the Preferred Stock shall be canceled. The third
share of Preferred Stock shall have 346,766 votes".
<PAGE>
5. In all other respects, the Agreement is hereby ratified and
confirmed. IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly
executed and delivered as of the date first above written.
The Harmat Organization, Inc. (Sellers)
(Purchaser)
----------------------------
By:______________________ LEIGH ROTHSCHILD (9.4485 shares)
Name: Matthew Schiolowitz President
IRREVOCABLE TRUST NO.III
By:___________________________
JAY HOWARD LINN, Trustee
(77.4796 shares)
-----------------------------
LORRAINE JAHN (1.8897 shares)
-------------------------------
JAY HOWARD LINN (0.4720 shares)
------------------------------
KENNETH ROTHSCHILD (2.3626
shares)
ROTHSCHILD CHILDREN'S
PRESENT INTEREST TRUST
By:____________________________
JAY HOWARD LINN (2.3626
shares)
------------------------------
JEFFREY SASS (3.5 shares)
MCLAUGHLIN & STERN, LLP
By:________________________
DAVID W. SASS (1.2 shares)
PENN COMPUTER SOLUTIONS
By:________________________
THOMAS TEATES (1.2850 shares)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), dated as of the 3rd day of June, 1999,
by and between The Harmat Organization, Inc. (the "Company") with an address at
Box 549, Speonk, New York 11972 and Leigh M. Rothschild ("Rothschild") residing
at 12864 Biscayne Blvd. #262, North Miami, Florida 33181. WHEREAS, Rothschild
and the Company have agreed that Rothschild shall render services to the Company
in the capacity of Chairman and Chief Executive Officer pursuant to the terms of
this Agreement. NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein set forth, the parties hereto have agreed and do hereby
mutually agree as follows: 1. Employment Term: The term of this Agreement shall
commence on the date hereof and shall expire three years thereafter (the
"Employment Period") subject to the provisions of Section 5. In the event the
term of Jeffrey Sass' Employment Agreement and/or Matthew Schilowitz's
Consulting Agreement are extended, then this Employment Agreement shall be
extended for the same term. 2. Duties of Executive: Rothschild shall serve as
Chairman and Chief Executive Officer of the Company and shall be required to
perform such duties as may from time to time be required by the Board of
Directors of the Company. Rothschild shall also serve on the Board of Directors
of the Company, if so elected, at no additional compensation. Employment shall
be on
<PAGE>
a full time basis except that Rothschild may act as a consultant to Ambergen,
Inc. The Company agrees to indemnify Rothschild as an officer, director, or
Chief Executive Officer of the Company to the fullest extent permitted by law.
3. Compensation: (a) As compensation for his services hereunder, the Company
shall pay Rothschild, during the Employment Period, a base salary ("Base
Salary") payable as follows: (i) Two Hundred Thousand Dollars ($200,000.00) for
the first year;
(ii) Two Hundred Fifty Thousand Dollars ($250,000.00) for the second year;
(iii) Three Hundred Thousand Dollars ($300,000.00) for the third year;
(b) The Company may withhold from payments of Employee's
salary amounts required to be withheld by the Company from time to time from
such salary under applicable Federal, State, and local laws and regulations then
in effect.
(c) Upon submission of written statements and bills in
accordance with the then regular procedures of the Company, Rothschild shall be
entitled to reimbursement for reasonable out-of-pocket expenses necessarily
incurred in the performance of his duties hereunder, including, but not limited
to, reimbursement for travel and car expenses. A Company credit card will also
be made available to Rothschild. In addition, the Company agrees to lease for
Rothschild a company automobile which it shall pay for in the amount of $750 per
month plus tax, cost of insurance, maintenance and gasoline. (If the car lease
is more than $750.00, Rothschild shall make up the difference on his own.)
(d) The Company shall establish within 180 days, as of the
date of this Agreement, a Bonus Incentive Plan at the discretion of the Board of
Directors which Leigh Rothschild shall
2
<PAGE>
be eligible to participate in.
4. Employee Benefits:
(a) Rothschild shall be included to the extent eligible
thereunder (at the expense of the Company, if appropriate) in any and all
existing plans (and any plans which may be adopted in the future) providing
benefits for the Company's employees generally, including, but not limited to,
group life and disability insurance, hospitalization, medical, vacation,
retirement, stock option plans and any and all similar or comparable benefits.
(b) Due to the fact that the Company's success is dependent
upon the activities of Rothschild, the Company will provide keyman insurance on
the life of Mr. Rothschild in the amount of $1,000,000.00 and Rothschild will
cooperate in obtaining and maintaining such policy. This policy shall be a
"whole life" insurance policy (the "Policy"). At the termination of this
Agreement, for any reason, the Company shall, at Rothschild's sole option,
assign Rothschild all of its right, title and interest in the Policy. At that
time, Rothschild may, at his expense, cause the Policy to continue in full force
and effect and shall have the option to designate a beneficiary of his choice.
5. Termination:
(a) The Company may terminate Rothschild's employment
hereunder at any time for cause only by written notice but only after a decision
by the Board of Directors of the Company which is communicated to Rothschild in
writing thirty (30) days prior to the effective date of termination; provided
however, that the Company pays to Rothschild a severance payment equal to the
aggregate Base Salary otherwise owed to him over the remaining term of the
Employment Period and allow Rothschild to retain any options granted under any
option plan
3
<PAGE>
granted to him notwithstanding the fact that such options may not be vested
and/or exercisable at the time of termination under this Section 5(a). (b) For
purposes of this Agreement "For Cause" shall mean: (i) Deliberate
misappropriating any funds or properties of the Company;
(ii) Gross mismanagement of the Company;
(c) In the event Rothschild is not nominated or re-elected to serve as a member
of the Board of Directors during the Employment Period, either party may
terminate this Agreement and Rothschild shall be entitled to continue to receive
his Base Salary as set forth in Section 3(a) above for the remainder of the
Employment Period and retain any options granted under any option plan
notwithstanding the fact that such options may not be vested and/or exercisable
at the time of termination under this Section 5(c). (d) In the event that
Rothschild dies or becomes disabled so as not to be able to perform his duties
as set forth herein for a period exceeding twelve (12) months, this Agreement
shall terminate and no further compensation shall be payable to Rothschild,
except as may otherwise be provided under any insurance policy, employee benefit
plan, or similar instrument; provided however, that during any such period of
disability, Rothschild shall be entitled to his base salary as provided under
Section 3(a) for a period not to exceed twelve (12) months. (e) Change of
Control: In the event Rothschild shall no longer be a director of the Company or
Chief Executive Officer of the Company, then Rothschild may terminate this
Agreement and Rothschild shall be entitled to continue to receive his Base
Salary as set forth in Section 3(a) above for the remainder of the Employment
Period and retain any options granted
4
<PAGE>
under any option plan notwithstanding the fact that such options may not be
vested and/or exercisable at the time of termination under this Section 5(c).
6. Covenant Not to Compete: Rothschild agrees that, commencing the date hereof
and continuing until the due date of his final payment of salary due hereunder,
he will not, except on behalf of the Company or with the written consent of the
Company (i) engage in any business activity in the United States, directly or
indirectly, on his own behalf or as a partner, stockholder (except by ownership
of less than ten percent (10%) of the outstanding stock of a publicly-held
corporation), director, trustee, principal, agent, employee, consultant or
otherwise of any person, firm or corporation which then is competitive with an
activity in which the Company or any parent or subsidiary of the Company is then
engaged at the time; (ii) allow the use of his name by or in connection with any
business activity which then is principally competitive with any activity in
which the Company or any of its parents or subsidiaries is then engaged; or
(iii) offer employment to or employ, for himself or on behalf of any then
competitor of the Company or any of its parents or subsidiaries, any persons who
at any time within the prior 6 months shall have been employed by the Company or
any parent or subsidiary of the Company. Rothschild recognizes that as an
officer and/or director of the Company, he has a fiduciary duty to reveal to the
Company all business opportunities that he may discover if said opportunities
concern technology, products or business, either at the present or in the
anticipated future. In that event, the Company shall have the first right to
participate in said business opportunity. For the purpose of this section,
"business opportunity" shall include but shall not be limited to, the purchase
of any interest in any business entity which is related to the type of
technology products or business of the Company, by either Rothschild, any agent
of
5
<PAGE>
Rothschild, or any entity controlled by Rothschild, its officers, directors,
agents, attorneys, employees, subsidiaries, parents, affiliates, joint
venturers, partners, division, predecessors, and all other persons acting for,
purporting to act for or subject to the control of Rothschild.
7. Default - Remedies: In the event of proof of breach by
Rothschild, the Company shall be entitled to pursue any remedy at law or equity,
and shall specifically have the right to terminate any further payments of any
kind or nature to be made under this Agreement.
8. Confidential Information: Except as otherwise required by
law, Rothschild shall not disclose or use at any time, except as part of his
employment by the Company, either during or subsequent to such employment, any
secret or confidential information or knowledge obtained by Rothschild while
employed by the Company. Without limiting the generality of the foregoing,
Rothschild shall not disclose or use any information pertaining to the business
of the Company or any parent or subsidiary of the Company, including, but not
limited to, profit figures, names of or relationships with customers or
advertisers, or the terms of any contracts to which it or they may be a party.
The obligation imposed by this Section 8 shall survive the expiration or other
termination of this Agreement.
9. Surrender of Documents: Rothschild shall, at the request of
the Company, promptly surrender to the Company or its nominee, upon any
termination of his employment hereunder, or at any time prior thereto, any
document, memorandum, record, letter, specification or other paper in his
possession or under his control relating to the operations, business, customers,
or affairs of the Company or its affiliates.
6
<PAGE>
10. Waiver of Breach: The waiver be either the Company or
Rothschild of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach by either the Company or Rothschild.
11. Severability: The invalidity or unenforceability of any
provision of this Agreement, whether in whole or in part, shall not in any way
affect the validity or enforceability of any other part of such provision or of
any provision herein contained, and any invalid or unenforceable provision or
part thereof shall be deemed severable to the extent of any such invalidity or
unenforceability. If such invalidity or unenforceability is due to the
unreasonableness of the time or geographical area covered by the covenants or
restrictions of such provision, such covenants and restrictions shall
nevertheless be effective for such period of time and for such area as may be
determined to be reasonable by a court of competent jurisdiction.
12. Assignment; Binding Effect: The obligations of Rothschild
hereunder may not be assigned or delegated without the prior written consent of
the Company. The rights and obligations of the parties shall inure to the
benefit of, and be binding upon, their respective heirs, personal
representatives, successors and assigns.
13. Notices:
(a) All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been given if delivered
by hand or mailed within the continental United States by first class, certified
mail, return receipt requested, postage and registry fees prepaid, or sent by
telecopier (with receipt confirmation), to the applicable party and
7
<PAGE>
addressed as follows:
(i) if to the Company:
The Harmat Organization, Inc.
P.O. Box 549
Speonk, New York 11972
(ii) if to Rothschild:
12864 Biscayne Blvd. #262
North Miami, Florida 33181
(b) Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof. Any notice or other communication sent by telecopier transmission shall
be deemed given at the time of written confirmation of receipt.
14. Entire Agreement of the Parties: This Agreement expresses
the entire agreement of the parties, and all promises, representations,
understandings, arrangements and prior agreements are merged herein and
superseded hereby. No person, other than pursuant to a resolution of the Board,
shall have any authority on behalf of the Company to agree to modify or change
this Agreement or anything in reference thereto, and any such modification or
change must be in writing and signed by both parties hereto.
15. Laws Governing: This Agreement has been entered into in
the State of Florida and shall be construed, interpreted and governed in
accordance with the laws of the State of Florida without regard to the choice of
laws provisions thereof.
8
<PAGE>
16. Counterparts: This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one document.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Rothschild has hereunto set his
hand as of the day and year first above written.
THE HARMAT ORGANIZATION, INC.
By:
Name: Matthew Schilowitz
Title: President
Accepted and Agreed
By:
Leigh M. Rothschild
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), dated as of the 3rd
day of June, 1999, by and between The Harmat Organization, Inc. (the "Company")
with an address at Box 549, Speonk, New York 11972 and Jeffrey W. Sass ("Sass")
residing at 5681 Hawkes Bluff, Davie, Florida 33331.
WHEREAS, Sass and the Company have agreed that Sass shall
render services to the Company in the capacity of Executive Vice-President
pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein set forth, the parties hereto have agreed and do hereby
mutually agree as follows:
1. Employment Term: The term of this Agreement shall commence
on the date hereof and shall expire three years thereafter (the "Employment
Period") subject to the provisions of Section 5. In the event Leigh Rothschild's
Employment Agreement is extended, then this Employment Agreement shall be
extended for the same term.
2. Duties of Executive: Sass shall serve as Executive
Vice-President of the Company and shall be required to perform such duties as
may from time to time be required by the Board of Directors of the Company. The
Company agrees to indemnify Sass as an officer of the Company to the fullest
extent permitted by law.
3. Compensation:
(a) As compensation for his services hereunder, the Company
shall pay Sass, during the Employment Period, a base salary ("Base Salary")
payable as follows:
1
<PAGE>
(i) One Hundred Fifty Thousand Dollars ($150,000.00) for the first year;
(ii) One Hundred Seventy Thousand Dollars ($175,000.00) for the second year;
(iii) Two Hundred Thousand Dollars ($200,000.00) for the third year;
(b) The Company may withhold from payments of Employee's
salary amounts required to be withheld by the Company from time to time from
such salary under applicable Federal, State, and local laws and regulations then
in effect.
(c) Upon submission of written statements and bills in
accordance with the then regular procedures of the Company, Sass shall be
entitled to reimbursement for reasonable out-of-pocket expenses necessarily
incurred in the performance of his duties hereunder, including, but not limited
to, reimbursement for travel and car expenses. A Company credit card will also
be made available to Sass. In addition, Sass shall also be entitled to a car
allowance of $750 per month, plus cost of insurance and maintenance.
(d) During the term of his employment, no other employee of
equal or lesser position/title shall receive greater compensation than Sass, not
including performance based commissions to sales staff.
(e) In the event Leigh Rothschild receives a bonus under his
Employment Agreement, then Jeffrey Sass shall hereunder, be entitled to a bonus
equal to sixty (60%) percent of the bonus granted to Leigh Rothschild.
4. Employee Benefits:
(a) Sass shall be included to the extent eligible thereunder
(at the expense of the Company, if appropriate) in any and all existing plans
(and any plans which may be adopted in the
2
<PAGE>
future) providing benefits for the Company's employees generally, including, but
not limited to, group life and disability insurance, hospitalization, medical,
vacation, retirement, stock option plans and any and all similar or comparable
benefits.
(b) Due to the fact that the Company's success is dependent
upon the activities of Sass, the Company will provide keyman insurance on the
life of Mr. Sass in the amount of $1,000,000.00 and Sass will cooperate in
obtaining and maintaining such policy. This policy shall be a "whole life"
insurance policy (the "Policy"). At the termination of this Agreement, for any
reason, the Company shall, at Sass' sole option, assign Sass all of its right,
title and interest in the Policy. At that time, Sass may, at his expense, cause
the Policy to continue in full force and effect and shall have the option to
designate a beneficiary of his choice.
5. Termination:
(a) The Company may terminate Sass's employment hereunder at
any time for cause only by written notice but only after a decision by the Board
of Directors of the Company which is communicated to Sass in writing thirty (30)
days prior to the effective date of termination; provided however, that the
Company pays to Sass a severance payment equal to the aggregate Base Salary
otherwise owed to him over the remaining term of the Employment Period and allow
Sass to retain any options granted under any option plan granted to him
notwithstanding the fact that such options may not be vested and/or exercisable
at the time of termination under this Section 5(a).
(b) For purposes of this Agreement "For Cause" shall mean:
(i) Deliberate misappropriating any funds or properties of the Company;
3
<PAGE>
(ii) Gross mismanagement of the Company;
(c) In the event Sass dies or becomes disabled so as not to be
able to perform his duties as set forth herein for a period exceeding twelve
(12) moths, this Agreement shall terminate and no further compensation shall be
payable to Sass, except as may otherwise be provided under any insurance policy,
employee benefit plan, or similar instrument; provided however, that during any
such period of disability, Sass shall be entitled to his base salary as provided
under Section 3(a) for a period not to exceed twelve (12) months.
6. Covenant Not to Compete: Sass agrees that, commencing the date hereof and
continuing until the due date of his final payment of salary due hereunder, he
will not, except on behalf of the Company or with the written consent of the
Company (i) engage in any business activity in the United States, directly or
indirectly, on his own behalf or as a partner, stockholder (except by ownership
of less than ten percent (10%) of the outstanding stock of a publicly-held
corporation), director, trustee, principal, agent, employee, consultant or
otherwise of any person, firm or corporation which then is competitive with an
activity in which the Company or any parent or subsidiary of the Company is then
engaged at the time; (ii) allow the use of his name by or in connection with any
business activity which then is principally competitive with any activity in
which the Company or any of its parents or subsidiaries is then engaged; or
(iii) offer employment to or employ, for himself or on behalf of any then
competitor of the Company or any of its parents or subsidiaries, any persons who
at any time within the prior 6 months shall have been employed by the Company or
any parent or subsidiary of the Company. Sass recognizes that as an officer
and/or director of the
4
<PAGE>
Company, he has a fiduciary duty to reveal to the Company all business
opportunities that he may discover if said opportunities concern technology,
products or business which is related, either directly or indirectly, to the
Company's type of technology, products or business, either at the present or in
the anticipated future. In that event, the Company shall have the first right to
participate in said business opportunity. For the purpose of this section,
"business opportunity" shall include but shall not be limited to, the purchase
of any interest in any business entity which is related to the type of
technology products or business of the Company, by either Sass, any agent of
Sass, or any entity controlled by Sass, its officers, directors, agents,
attorneys, employees, subsidiaries, parents, affiliates, joint venturers,
partners, division, predecessors, and all other persons acting for, purporting
to act for, or subject to, the control of Sass.
7. Default - Remedies: In the event of proof of breach by
Sass, the Company shall be entitled to pursue any remedy at law or equity, and
shall specifically have the right to terminate any further payments of any kind
or nature to be made under this Agreement.
8. Confidential Information: Except as otherwise required by
law, Sass shall not disclose or use at any time, except as part of his
employment by the Company, either during or subsequent to such employment, any
secret or confidential information or knowledge obtained by Sass while employed
by the Company. Without limiting the generality of the foregoing, Sass shall not
disclose or use any information pertaining to the business of the Company or any
parent or subsidiary of the Company, including, but not limited to, profit
figures, names of or relationships with customers or advertisers, or the terms
of any contracts to which it or they may be a party.
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The obligation imposed by this Section 8 shall survive the expiration or other
termination of this Agreement.
9. Surrender of Documents: Sass shall, at the request of the
Company, promptly surrender to the Company or its nominee, upon any termination
of his employment hereunder, or at any time prior thereto, any document,
memorandum, record, letter, specification or other paper in his possession or
under his control relating to the operations, business, customers, or affairs of
the Company or its affiliates.
10. Waiver of Breach: The waiver be either the Company or Sass
of any provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach by either the Company or Sass.
11. Severability: The invalidity or unenforceability of any
provision of this Agreement, whether in whole or in part, shall not in any way
affect the validity or enforceability of any other part of such provision or of
any provision herein contained, and any invalid or unenforceable provision or
part thereof shall be deemed severable to the extent of any such invalidity or
unenforceability. If such invalidity or unenforceability is due to the
unreasonableness of the time or geographical area covered by the covenants or
restrictions of such provision, such covenants and restrictions shall
nevertheless be effective for such period of time and for such area as may be
determined to be reasonable by a court of competent jurisdiction.
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12. Assignment; Binding Effect: The obligations of Sass
hereunder may not be assigned or delegated without the prior written consent of
the Company. The rights and obligations of the parties shall inure to the
benefit of, and be binding upon, their respective heirs, personal
representatives, successors and assigns.
13. Notices:
(a) All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been given if delivered
by hand or mailed within the continental United States by first class, certified
mail, return receipt requested, postage and registry fees prepaid, or sent by
telecopier (with receipt confirmation), to the applicable party and addressed as
follows:
(i) if to the Company:
The Harmat Organization, Inc.
P.O. Box 549
Speonk, New York 11972
(ii) if to Sass:
5681 Hawkes Bluff
Davie Florida, 33331
(b) Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof. Any notice or other communication sent by telecopier transmission shall
be deemed given at the time of written confirmation of receipt.
14. Entire Agreement of the Parties: This Agreement expresses
the entire agreement of the parties, and all promises, representations,
understandings, arrangements and
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prior agreements are merged herein and superseded hereby. No person, other than
pursuant to a resolution of the Board, shall have any authority on behalf of the
Company to agree to modify or change this Agreement or anything in reference
thereto, and any such modification or change must be in writing and signed by
both parties hereto.
15. Laws Governing: This Agreement has been entered into in
the State of Florida and shall be construed, interpreted and governed in
accordance with the laws of the State of Florida without regard to the choice of
laws provisions thereof.
16. Counterparts: This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one document.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Sass has hereunto set his hand as
of the day and year first above written.
THE HARMAT ORGANIZATION, INC.
By:
Name: Matthew Schilowitz
Title: President
Accepted and Agreed
By:
Jeffrey W. Sass
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement"), dated as of the 3rd
day of June, 1999, by and between The Harmat Organization, Inc. (the "Company")
with an address at Box 549, Speonk, New York 11972 and Matthew C. Schilowitz
("Schilowitz") residing at Box 108, Remsenburg, New York 11960.
WHEREAS, Schilowitz and the Company have agreed that
Schilowitz shall render services to the Company as a consultant pursuant to the
terms of this Agreement.
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein set forth, the parties hereto have agreed and do hereby
mutually agree as follows:
1. Term: The term of this Agreement shall commence on the date
hereof and shall expire three years thereafter (the "Employment Period") subject
to the provisions of Section 5. In the event Leigh Rothschild's Employment
Agreement is extended, then this Employment Agreement shall be extended for the
same term.
2. Duties of Executive: Schilowitz shall be required to
perform such duties as may from time to time be required by the Board of
Directors of the Company. Schilowitz shall also serve on the Board of Directors
of the Company, if so elected, at no additional compensation.
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3. Compensation:
(a) As compensation for his services hereunder, the Company
shall pay Schilowitz, during the Employment Period, a base fee ("Base Fee")
payable as follows:
(i) One Hundred Fifty Thousand Dollars ($150,000.00) for the first year;
(ii) One Hundred Seventy Thousand Dollars ($175,000.00) for the second year;
(iii) Two Hundred Thousand Dollars ($200,000.00) for the third year;
(b) The Company may withhold from payments of consultant's fee
required to be withheld by the Company from time to time from such salary under
applicable Federal, State, and local laws and regulations then in effect.
(c) Upon submission of written statements and bills in
accordance with the then regular procedures of the Company, Schilowitz shall be
entitled to reimbursement for reasonable out-of-pocket expenses necessarily
incurred in the performance of his duties hereunder, including, but not limited
to, reimbursement for travel and car expenses. A Company credit card will also
be made available to Schilowitz. In addition, Schilowitz shall also be entitled
to a car allowance of $750 per month, plus cost of insurance and maintenance.
(d) In the event Leigh Rothschild receives a bonus under his
Employment Agreement, then Matthew Schilowitz shall hereunder, be entitled to a
bonus equal to sixty (60%) percent of the bonus granted to Leigh Rothschild.
4. Benefits:
(a) Schilowitz shall be included to the extent eligible
thereunder (at the expense of the Company, if appropriate) in any and all
existing plans (and any plans which may be adopted
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in the future) providing benefits for the Company's employees generally,
including, but not limited to, group life and disability insurance,
hospitalization, medical, vacation, retirement, stock option plans and any and
all similar or comparable benefits.
(b) Due to the fact that the Company's success is dependent
upon the activities of Schilowitz, the Company will continue to provide keyman
insurance on the life of Mr. Schilowitz in the amount of $1,000,000.00 and
Schilowitz will cooperate in obtaining and maintaining such policy. This policy
shall be a "whole life" insurance policy (the "Policy"). At the termination of
this Agreement, for any reason, the Company shall, at Schilowitz's sole option,
assign Schilowitz all of its right, title and interest in the Policy. At that
time, Schilowitz may, at his expense, cause the Policy to continue in full force
and effect and shall have the option to designate a beneficiary of his choice.
5. Termination:
(a) The Company may terminate Schilowitz's engagement
hereunder at any time for cause only by written notice but only after a decision
by the Board of Directors of the Company which is communicated to Schilowitz in
writing thirty (30) days prior to the effective date of termination; provided
however, that the Company pays to Schilowitz a severance payment equal to the
aggregate Base Fee otherwise owed to him over the remaining term of the
Employment Period and allow Schilowitz to retain any options granted under any
option plan granted to him notwithstanding the fact that such options may not be
vested and/or exercisable at the time of termination under this Section 5(a).
(b) For purposes of this Agreement "For Cause" shall mean:
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(i) Deliberate misappropriating any funds or properties of the Company;
(ii) Gross mismanagement of the Company;
(c) In the event Schilowitz is not nominated or re-elected to
serve as a member of the Board of Directors during the Period, either party may
terminate this Agreement and Schilowitz shall be entitled to continue to receive
his Base Fee as set forth in Section 3(a) above for the remainder of the Period
and retain any options granted under any option plan notwithstanding the fact
that such options may not be vested and/or exercisable at the time of
termination under this Section 5(c).
(d) In the event that Schilowitz dies or becomes disabled so
as not to be able to perform his duties as set forth herein for a period
exceeding twelve (12) months, this Agreement shall terminate and no further
compensation shall be payable to Schilowitz, except as may otherwise be provided
under any insurance policy, employee benefit plan, or similar instrument;
provided however, that during any such period of disability, Schilowitz shall be
entitled to his base salary as provided under Section 3(a) for a period not to
exceed twelve (12) months.
6. Covenant Not to Compete: Schilowitz agrees that, commencing the date hereof
and continuing until the due date of his final payment of Base Fee due
hereunder, he will not, except on behalf of the Company or with the written
consent of the Company (i) engage in any business activity in the United States,
directly or indirectly, on his own behalf or as a partner, stockholder (except
by ownership of less than fifty percent (50%) of the outstanding stock of a
publicly-held corporation), director, trustee, principal, agent, employee,
consultant or otherwise of any person, firm or corporation
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which then is competitive with an activity in which the Company or any parent or
subsidiary of the Company is then engaged at the time; (ii) allow the use of his
name by or in connection with any business activity which then is principally
competitive with any activity in which the Company or any of its parents or
subsidiaries is then engaged; or (iii) offer employment to or employ, for
himself or on behalf of any then competitor of the Company or any of its parents
or subsidiaries, any persons who at any time within the prior 6 months shall
have been employed by the Company or any parent or subsidiary of the Company.
Schilowitz recognizes that as an officer and/or director of
the Company, he has a fiduciary duty to reveal to the Company all business
opportunities that he may discover if said opportunities concern technology,
products or business which is related, either directly or indirectly, to the
Company's type of technology, products or business, either at the present or in
the anticipated future. In that event, the Company shall have the first right to
participate in said business opportunity. For the purposes of this section,
"business opportunity" shall include but shall not be limited to, the purchase
of any interest in any business entity which is related to the type of
technology products or business of the Company, by either Schilowitz, any agent
of Schilowitz, or an entity controlled by Schilowitz, its officers, directors,
agents, attorneys, employees, subsidiaries, parents, affiliates, joint ventures,
partners, division, predecessors, successors, and all other persons acting for,
purporting to act for or subject to the control of Schilowitz.
7. Default - Remedies: In the event of proof of breach by
Schilowitz, the Company shall be entitled to pursue any remedy at law or equity,
and shall specifically have the right to terminate any further payments of any
kind or nature to be made under this Agreement.
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8. Confidential Information: Except as otherwise required by
law, Schilowitz shall not disclose or use at any time, except as part of his
employment by the Company, either during or subsequent to such employment, any
secret or confidential information or knowledge obtained by Schilowitz while
employed by the Company. Without limiting the generality of the foregoing,
Schilowitz shall not disclose or use any information pertaining to the business
of the Company or any parent or subsidiary of the Company, including, but not
limited to, profit figures, names of or relationships with customers or
advertisers, or the terms of any contracts to which it or they may be a party.
The obligation imposed by this Section 8 shall survive the expiration or other
termination of this Agreement.
9. Surrender of Documents: Schilowitz shall, at the request of
the Company, promptly surrender to the Company or its nominee, upon any
termination of his employment hereunder, or at any time prior thereto, any
document, memorandum, record, letter, specification or other paper in his
possession or under his control relating to the operations, business, customers,
or affairs of the Company or its affiliates.
10. Waiver of Breach: The waiver be either the Company or
Schilowitz of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach by either the Company or Schilowitz.
11. Severability: The invalidity or unenforceability of any
provision of this Agreement, whether in whole or in part, shall not in any way
affect the validity or enforceability of any other part of such provision or of
any provision herein contained, and any invalid or
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unenforceable provision or part thereof shall be deemed severable to the extent
of any such invalidity or unenforceability. If such invalidity or
unenforceability is due to the unreasonableness of the time or geographical area
covered by the covenants or restrictions of such provision, such covenants and
restrictions shall nevertheless be effective for such period of time and for
such area as may be determined to be reasonable by a court of competent
jurisdiction.
12. Assignment; Binding Effect; Prior Agreements: The
obligations of Schilowitz hereunder may not be assigned or delegated without the
prior written consent of the Company. The rights and obligations of the parties
shall inure to the benefit of, and be binding upon, their respective heirs,
personal representatives, successors and assigns. In addition, this Agreement
supersedes all other prior Agreements.
13. Notices:
(a) All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been given if delivered
by hand or mailed within the continental United States by first class, certified
mail, return receipt requested, postage and registry fees prepaid, or sent by
telecopier (with receipt confirmation), to the applicable party and addressed as
follows:
(i) if to the Company:
The Harmat Organization, Inc.
P.O. Box 549
Speonk, New York 11972
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(ii) if to Schilowitz:
Box 108
Remsenburg, New York 11960
(b) Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof. Any notice or other communication sent by telecopier transmission shall
be deemed given at the time of written confirmation of receipt.
14. Entire Agreement of the Parties: This Agreement expresses
the entire agreement of the parties, and all promises, representations,
understandings, arrangements and prior agreements are merged herein and
superseded hereby. No person, other than pursuant to a resolution of the Board,
shall have any authority on behalf of the Company to agree to modify or change
this Agreement or anything in reference thereto, and any such modification or
change must be in writing and signed by both parties hereto.
15. Laws Governing: This Agreement has been entered into in
the State of Florida and shall be construed, interpreted and governed in
accordance with the laws of the State of Florida without regard to the choice of
laws provisions thereof.
16. Counterparts: This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one document.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Schilowitz has hereunto set his
hand as of the day and year first above written.
THE HARMAT ORGANIZATION, INC.
By:
Name: Leigh Rothschild
Title: Chairman
Accepted and Agreed
By:
Matthew C. Schilowitz
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
THE HARMAT ORGANIZATION, INC.
The Harmat Organization, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
FIRST: The name of the corporation is: The Harmat Organization, Inc.
SECOND: The certificate of incorporation of the Corporation was filed by the
Department of State on December 19, 1995 under its present name.
THIRD: Article Fourth of the certificate of incorporation is hereby amended to
designate a series of Preferred Stock to be called Series A Preferred Stock to
consist of three (3) shares, one to be Class I, one to be Class II and one to be
Class III.
FOURTH: To accomplish the foregoing amendment, Article Fourth of the certificate
of incorporation relating to the capital of the corporation is hereby amended to
add a designation of the Series A Preferred Stock of the Corporation as follows
by adding the following paragraph:
There is hereby designated the Series A Preferred Stock, par value one
mil per share, consisting of three (3) shares, each share of a
different class as herein set forth with the following relative rights,
preferences and limitations: Class I shall consist of one share and
shall be entitled to vote pari pasu with the common stock having one
vote for each share of common stock of the Company issued upon exercise
of the outstanding Class A Warrants of the Company. In the event the
Class A Warrants are not exercised then the Class I Series A preferred
stock shall not have any vote. The voting rights shall end five (5)
years from the date of issue of the Series A Preferred Stock Class I.
Class II shall consist of one share and shall be entitled to vote pari
pasu with the common stock having one vote for each share of common
stock of the Company issued upon exercise of the outstanding Class B
Warrants of the Company. In the event the Class B Warrants are not
exercised then the Class II Series A preferred stock shall not have any
vote. The voting rights shall end five (5) years from the date of issue
of the Series A Preferred Stock Class II. Class III shall consist of
one share and shall be entitled to vote pari pasu with the common and
shall have 346,766 votes. The Series A Preferred Stock, Classes I, II
and III shall not be entitled to any dividends and shall be entitled
upon any liquidation, dissolution or winding up of the business of the
corporation to a liquidation preference equal to the par value of each
share.
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FIFTH: The foregoing amendment of the certificate of incorporation of
the Corporation was authorized by the consent in writing of all of the members
of the Board of Directors of the corporation, followed by an unanimous written
consent of the shareholders entitled to vote on the said amendment to the
certificate of incorporation.
IN WITNESS WHEREOF, I have subscribed this document on the date set
forth below and do hereby affirm, under the penalties of perjury, that the
statements contained therein have been examined by me and are true and correct.
Dated: June 7, 1999
MATTHEW SCHILOWITZ, PRESIDENT
SCOTT PRIZER, SECRETARY
