SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Act of 1934
Date of Report (date of earliest event reported) December 16, 1998
TOUPS TECHNOLOGY LICENISNG, INC.
(Exact name of registrant as specified in its charter)
Florida 000-23897 59-3462501
State or other jurisdiction Commission (IRS Employer
of incorporation) File Number) Identification No.)
7887 Bryan Diary Road, Suite 105, Largo, Florida 33777
(address of principal executive offices)
Registrant's telephone number, including area code: (813)-548-0918
<PAGE>
ITEM 1 Not applicable
ITEM 2 Acquisition of InterSource HealthCare, Inc.
On November 30, 1998, effective December 18, 1998, the
Registrant acquired InterSource HealthCare, Inc.,
("InterSource") in an exchange of common shares agreement in
which the Company issued 1,203,241 unregistered common shares
in exchange for 100% of the issued and outstanding common
shares of InterSource. The Company agreed to register 225,000
of the 1,203,241 common shares issued in the course of the
acquisition. The consideration provided in the course of the
acquisition was determined based on InterSource's unaudited
financial statements for the eleven-month period ending
November, 1998 and anticipated revenues and earnings for the
twelve month period between Jan - Dec, 1999. Three of the
Company's Officers whom are also Directors will receive
unregistered common shares as a result of the acquisition of
InterSource.
The Company does not intend to liquidate any of the
equipment acquired but intends to continue InterSource's
business purpose.
InterSource is divided into two business activities:
medical facility development and; medical equipment sales and
services. The medical equipment division provides medical
equipment management services and sells equipment to outfit a
wide range of health care environments. The medical facility
development division provides services to medical developers,
physician groups and insurers from feasibility studies to
turnkey medical malls.
InterSource maintains an interactive home-page able to
conduct secured transactions through the internet. InterSource
further maintains a marketing staff which management foresee
can significantly enhance the Company's overall sales and
marketing program.
For the eleventh-month period ended November 30, 1998, the
unaudited Statement of Operations for InterSource reflects
sales of $2,438,158 and net income of $1,214,061. The effect
upon the Company as a result of the acquisition reflected in
TTL's unaudited Statement of Operations for the Company as of
the nine-month period ended September 30, 1998 and for
InterSource as of the eleven-month period ended November 30,
1998 reflect sales of $4,139,142 and net income of $451,611.
(See Item 7 and attached TTL unaudited financial statements)
Prior to the acquisition by Toups Technology, InterSource
was a closely-held private corporation owned by 31 persons.
There were no finders or other persons paid any form of
commission in the course of this transaction.
The Company fixed the acquisition value of InterSource at
1,203,241 shares of unregistered common stock. InterSource is
a two-year old profitable company and prior to the
acquisition, was capitalized with 8,882,000 shares held by 31
persons. In distributing the shares of TTL issued in the
acquisition of InterSource, the Company divided InterSource
shareholders into two groups: (i) individuals who had over
time purchased unregistered shares of InterSource at the rate
of $1.00 per Share, and; (ii) individuals who had received
shares of InterSource as compensation or for services
rendered.
The result of this division was that of the 8,882,000
outstanding shares of InterSource, 225,000 shares held by 11
individuals were paid for at the rate of $1.00 per share and
8,657,000 shares held by 20 individuals were issued in lie of
compensation or for services rendered.
In concluding the acquisition of InterSource, the Company
then issued 225,000 of TTL's common shares on a
share-for-share basis with the 11 shareholders cited above.
None of these individuals are officers, directors, associates
or affiliates of the Company. The Company has agreed to
conduct a registration of the 225,000 shares issued to the 11
individuals cited above.
Further in concluding the acquisition of InterSource,
InterSource authorized a .113:1 reverse split of its remaining
outstanding shares that were not purchased but were acquired
as compensation or in exchange for services resulting in
978,241 shares outstanding held by 20 individuals.
Item 3 Not applicable.
Item 4 Not applicable.
Item 5 Not applicable
Item 6 Not applicable
Item 7 Financial Statements
The Company's independent auditor's estimate it will take
approximately forty-five days to complete financial statements
required to be a part of this Form 8-k. In the interim, the
Company includes management's unaudited financial statements
reflecting the impact of the acquisition reported herein
including
unaudited Balance Sheet of TTL as of September 30, 1998
and InterSource as of November 30, 1998, and;
unaudited Statement of Operations of TTL as the nine-month
period ended September 30, 1998 and InterSource for the
eleven-month period ended November 30, 1998.
The Company intends to file required financial statements
by amendment hereon as soon as practicable. Previously, the
Company had reported on a separate Form 8-K the acquisition of
Brounley Engineering wherein it was required to provide
audited financial statement relating to thereto within
sixty-days following. However, based on operational and fiscal
advantages, the Company had to complete the InterSource
transaction during the course of conducting the audit for
Brounley.
For the Company to have to expense an audit to describe
the Brounley acquisition followed by an audit to describe the
InterSource acquisition followed by an audit in compliance
with the Company's fiscal year ending December 31, 1998 would
cause an undue burden on the financial and personnel resources
of the Company which could have an adverse effect on the
Company's shareholders.
Further, the Company made both the Brounley and
InterSource acquisitions only after an affirmative majority
vote of the Company's shareholders. The Company intends
hereafter to file its annual report on Form 10-KSB within
sixty days within which shall be contained audited financial
statements required to amend this Form 8-K.
Item 8 Not applicable.
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.
Toups Technology Licensing, Inc.
(Registrant)
Date:December 23, 1998 Leon H. Toups, President
------------------------
(Signature)
Exhibit
1 Unaudited Balance Sheet and Statement of Operations relating to InterSource
Health Care, Inc., for the eleven month period ended November 30, 1998
2 Exchange of Share Agreement by and between Toups Technology Licensing, Inc.
and InterSource Health Care, Inc. dated November 30, 1998 effective
December 16, 1998
<PAGE>
INTERSOURCE HEALTH CARE, INC.
BALANCE SHEET
November 3, 1998 (Unaudited)
(Unaudited)
November 30,
1998
Assets:
Cash $ 3,247
Accounts Receivable, net of allowance
for doubtful accounts of $5,000 1,576,201
Inventory, at cost 37,923
Other Assets 67,741
Property and equipment, net
of accumulated depreciation of $4,750 15,122
-----------------
Total Assets $ 1,700,234
=================
Current Liabilities:
Current portion long-term liabilities 0
Accounts Payable and accrued liabilities 379,374
Notes payable 0
Customer deposits 0
Capital lease obligations 0
Other current liabilities 0
-----------------
Total Current Liabilities $ 379,374
-----------------
Long-Term liabilities, less current portion 0
Total Liabilities $ 379,374
-----------------
Stockholders' equity:
Common Stock 888
Additional paid-in capital 224,812
Retained Earnings (118,901)
Net Income 1,214,061
-----------------
Total stockholders' equity $ 1,320,860
-----------------
Total liabilities and stockholders' equity $ 1,700,234
,=================
<PAGE>
INTERSOURCE HEALTH CARE, INC.
STATEMENT OF OPERATIONS
For the eight-month period ended August 31, 1998 (Unaudited)
(Unaudited)
Eleventh-Month
Period ended
November 30,
1998
Sales $ 2,438,158
Cost of Goods Sold 658,778
Gross Income from Operations 1,779,380
Expenses:
Salaries 434,149
Consulting Fees 61,392
Other operating costs 191,208
-----------------
Total expenses 686,749
Net Income (loss from Operations 1,092,631
Other Income:
Other Income 128,712
Interest Income 165
Other Expenses:
Interest Expense 7,447
Net Income (loss) $ 1,214,061
=================
Weighted average number of
shares outstanding 8,882,000
Net income per share $ 0.1367
=================
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is made this 30th of November,
1998, by and among TOUPS TECHNOLOGY LICENSING, INC., a Florida corporation
("TTL"); INTERSOURCE HEALTH CARE, INC., a Florida ("IHC"); and the persons
listed in Exhibit "A-l" hereof who are the owners of record of all the issued
and outstanding stock of IHC who execute and deliver the Agreement ("IHC
Stockholders"), based on the following:
Recitals
TTL wishes to acquire all the issued and outstanding stock of IHC in
exchange for stock of TTL in a transaction intended to qualify as a tax-free
exchange pursuant to section 368(a)(l)(B) of the Internal Revenue Code of 1986,
as amended. The parties intend for this Agreement to represent the terms and
conditions of such tax-free transaction, which Agreement the parties hereby
adopt.
Agreement
Based on the stated premises, which are incorporated herein by
reference, and for and in consideration of the mutual covenants and agreements
hereinafter set forth, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, it is hereby agreed as follows:
DEFINITIONS
1. InterSource Health Care, Inc., incorporated in Florida, USA on November 4,
1996 with offices at 7887 Bryan Dairy Road, Suite 105, Largo, Florida 33777
USA ("IHC").
2. Toups Technology Licensing, Inc. incorporated in Florida, USA on August 29,
1997 with offices at 7887 Bryan Diary Road, Suite 105, Largo, Florida,
33777 USA ("TTL").
ARTlCLE I - EXCHANGE OF STOCK
1.01 Exchange of Shares and Rights to Shares. On the terms and subject to
the conditions set forth in this Agreement; on the Closing Date, the
IHC Stockholders shall assign, transfer, and deliver to TTL, free and
clear of all liens, pledges, encumbrances, charges, restrictions, or
claims of any kind, nature, or description, all issued and outstanding
shares of common stock and any rights, warrants, programs or agreements
for the purchase of common and/or preferred stock of IHC (the "IHC
Share Rights") held by IHC's existing Stockholders or in light of any
rights, warrants, programs or agreement for the purchase of common
and/or preferred stock, proposed IHC shareholders, which shares,
rights, warrants, programs and/or agreements to purchase IHC stock
shall represent all issued and outstanding shares of IHC and any and
all rights to acquire or obligations to sell IHC stock and TTL agrees
to acquire such shares and share rights on such date by issuing and
delivering in exchange therefore aggregate of 1,203,241 one million,
two hundred and three thousand, two hundred and forty-one) unregistered
shares of TTL common stock, par value $0.001 per share, (the "TTL
Common Stock"). Such shares of TTL unregistered Common Stock shall be
issued according to the number of IHC Share Rights held and as set
forth opposite the IHC Stockholder's respective names in Exhibit "A-l".
1.02 Delivery of Certificates or Rights to acquire by IHC Stockholders. The
transfer of IHC Share Rights by the IHC Stockholders shall be effected
by the delivery to TTL at the Closing (as set forth in Section 1.05
hereof) of a certificate issued to TTL representing all of the issued
and outstanding shares of IHC. The transfer of any rights to acquire or
obligations to sell IHC stock shall be effected in the form of a
statement provided by IHC setting forth all such rights and/or
obligations including a statement that there are no other rights to
acquire nor obligations to sell IHC common and/or preferred stock which
are not contained in the statement required in fulfillment of this
Article 1.02.
1.03 Operation as Wholly-Owned Subsidiary. After giving effect to the
transaction contemplated hereby, TTL will own all the issued and
outstanding shares of IHC and IHC shall be merged with TTL.
1.04 Further Assurances . At the Closing and from time to time thereafter,
the IHC Stockholders shall execute such additional instruments and take
such other action as TTL may reasonably request without undue cost to
the IHC Stockholders in order to more effectively sell, transfer, and
assign clear title and ownership in the IHC Shares to TTL.
1.05 Closing and Parties. The Closing contemplated hereby shall be held at
the principal office of TTL at Suite 105, 7887 Bryan Dairy Road, Largo,
Florida on 10:00 a.m. November 30, 1998, or on another date to be
agreed to in writing by the parties (the "Closing Date"). The Agreement
may be closed at any time following approval by a majority of the
stockholders of TTL Common Stock as set forth in Section 4.02 hereof
and the IHC Stockholders as set forth in Section 5.02. The Closing may
be accomplished by wire, express mail, overnight courier conference
telephone call or as otherwise agreed to by the respective parties or
their duly authorized representatives.
1.06 Closing Events.
(a) TTL Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article 1V, TTL shall deliver to IHC
at Closing all the following:
(i) A certificate of good standing from the secretary of
State of Florida, certifying that TTL is in good
standing as a corporation in the State of Florida;
(ii) Incumbency and specimen signature certificates dated
the Closing Date with respect to the officers of TTL
executing this Agreement and any other document
delivered pursuant hereto on behalf of TTL;
(iii) Copies of the resolutions of TTL's board of directors
and shareholder minutes or consents authorizing the
execution and performance of this Agreement and the
contemplated transactions, certified by the secretary
or an assistant secretary of TTL as of the Closing
Date;
(iv) Instructions to TTL's Transfer Agent for the issuance
of certificates for 1,203,241 shares of TTL
unregistered Common Stock in the names of the IHC
Stockholders and in the amounts set forth in Exhibit
"A-l" which shall be issued by TTL's transfer agent
immediately following Closing or as expeditiously as
possible thereafter; and
(v) The certificate contemplated by Section 4.03, executed
by the chief operating officer of IHC; and
(vi) The certificate contemplated by Section 4.04, dated
the Closing Date, signed by the chief operating
officer of IHC.
In addition to the above deliveries, TTL shall take all steps and
actions as IHC and IHC Stockholders may reasonably request or as may
otherwise be reasonably necessary to consummate the transactions
contemplated hereby.
(b) IHC Deliveries. Subject to fulfillment or waiver of the
conditions set forth in Article V, IHC and/or IHC
Stockholder's shall deliver to TTL at Closing all the
following:
(i) A certificate of good standing from the secretary of
state of Florida certifying that IHC is in good
standing as a corporation in the State of Florida;
(ii) Incumbency and specimen signature certificates dated
the Closing Date with respect to the officers of IHC
executing this Agreement and any other document
delivered pursuant hereto on behalf of IHC;
(iii) Copies of resolutions of the board of directors and
of the stockholders of IHC authorizing the execution
and performance of this Agreement and the
contemplated transactions, certified by the secretary
or an assistant secretary of IHC as of the Closing
Date;
(iv) The certificate contemplated by Section 5.03, executed
by the chief operating officer of IHC; and
(v) The certificate contemplated by Section 5.04, dated
the Closing Date, signed by the chief operating
officer of IHC.
In addition to the above deliveries, IHC shall take all
steps and actions as TTL may reasonably request or as may
otherwise be reasonably necessary to consummate the
transactions contemplated hereby.
1.07 Termination.
(a) This Agreement may be terminated by the board of directors of
either TTL or IHC at any time prior to the Closing Date if:
(i) There shall be any actual or threatened action or
proceeding before any court or any governmental body
which shall seek to restrain, prohibit or invalidate
the transactions contemplated by this Agreement and
which, in the reasonable judgment of such board of
directors, made in good faith and based upon the
advice of its' legal counsel, makes it inadvisable to
proceed with the transactions contemplated by this
Agreement;
(ii) Any of the transactions contemplated hereby are
disapproved by any regulatory authority whose
approval is required to consummate such transactions
or in the reasonable judgment of such board of
directors made in good faith and based on the advice
of counsel, there is substantial likelihood that any
such approval will not be obtained or will be
obtained only on a condition or conditions which
would be unduly burdensome, making it inadvisable to
proceed with the exchange;
In the event of termination pursuant to this paragraph (a)
of Section 1.07, no obligation, right, or liability shall
arise hereunder, and each party shall bear all of the expenses
incurred by it in connection with the negotiation,
preparation, and execution of this Agreement and the
transactions contemplated hereby.
(b) This Agreement may be terminated at any time prior to the
Closing Date by action of the board of directors of TTL if
(i) IHC shall fail to comply in any material respect with
any of its covenants or agreement contained in this
Agreement or if any of the representations or
warranties of IHC contained herein shall be
inaccurate in any material respect or
(ii) TTL determines that there has been or is likely to be
any material adverse change in the financial or legal
condition of IHC.
In the event of termination pursuant to this paragraph (b)
of this Section 1.07, no obligation, right, remedy, or
liability shall arise hereunder. All parties shall bear their
own costs incurred in connection with the negotiation,
preparation, and execution of this Agreement and the
transactions contemplated hereby.
(c) This Agreement may be terminated at any time prior to
the Closing Date by action of the board of directors of
IHC if:
(i) TTL shall fail to comply in any material respect with
any of its covenants or agreement contained in this
Agreement or if any of the representations or
warranties of TTL contained herein shall be
inaccurate in any material respect, or
(ii) IHC determines that there has been or is likely to be
any adverse change in the financial or legal
condition of TTL.
In the event of termination pursuant to this paragraph (c)
of this Section 1.07. no obligation, right, remedy, or
liability shall arise hereunder. All parties shall each bear
their own costs incurred in connection with the negotiation,
preparation, and execution of this Agreement and the
transactions contemplated hereby.
1.08 Restriction on TTL Common Stock. The unregistered TTL Common Stock
will, when so issued, be validly issued and outstanding, fully paid and
non-assessable. Said Common Stock shall be issued as "restricted
shares" as that term is defined in Rule 144, as amended, and shall bear
a legend in the following manner:
THESE SECURITIES CANNOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
BY ANY HOLDER TO ANY OTHER PERSON OR ENTITY UNLESS SUBSEQUENTLY
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND UNDER
APPLICABLE LAW OF THE STATE OR STATES WHERE SOLD, TRANSFERRED OR
DISPOSED OF UNLESS SUCH SALE, TRANSFER OR DISPOSITION SHALL QUALIFY
UNDER AN ALLOWED EXEMPTION TO SUCH REGISTRATION. ANY REQUEST FOR THE
SALE, TANSFER OR OTHER DISPOSITON OF THESE SHARES SHALL BE ACCOMPANIED
BY AN OPINION OF COUNSEL ACCEPTABLE TO THIS CORPORATION.
ARTICLE II - REPRESENTATIONS, COVENANTS, AND WARRANTIES OF TTL
As an inducement to, and to obtain the reliance of IHC, TTL represents and
warrants as follows:
2.01 Organization. TTL is, and will be on the Closing Date, a corporation
duly organized, validly existing, and in good standing under the laws
of the State of Florida and has the corporate power and is and will be
duly authorized, qualified, franchised, and licensed under all
applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, and
there are no other jurisdictions in which it is not so qualified in
which the character and location of the assets owned by it or the
nature of the material business transacted by it requires
qualification, except where failure to do so would not have a material
adverse effect on its business, operations, properties, assets or
condition. The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not, violate any provision of
TTL's articles of incorporation or bylaws, or other agreement to which
it is a party or by which it is bound.
2.02 Approval of Agreement. TTL has full power, authority, and legal right
and has taken, or will taken all action required by law, its articles
of incorporation, bylaws, and otherwise to execute and deliver this
Agreement and to consummate the transactions herein contemplated. The
board of directors of TTL has authorized and approved the execution,
delivery, and performance of this Agreement and the transactions
contemplated hereby; subject to the approval of the TTL stockholders
and compliance with state and federal corporate and securities laws.
2.03 Capitalization The authorized capitalization of TTL consists of
50,000,000 shares of common stock, $0.001 par value, of which
18,064,383 shares are issued and outstanding. All issued and
outstanding shares of TTL are legally issued, fully paid, and
non-assessable and are not issued in violation of the preemptive or
other right of any person. There are no dividends or other amounts due
or payable with respect to any of the shares of capital stock of TTL.
2.04 Financial Statements.
(a) Included in Schedule 2.04 are the financial statements which
were filed by TTL in connection with TTL's Form IO-SB, as well
as quarterly audited financial statements for the periods
ending March 31, 1998, June 30, 1998 and September 30, 1998
(collectively "1OQs"), which financial statements have been
duly filed with the Securities and Exchange Commission ("SEC")
as required by the 1934 Act.
(b) The financial statements of TTL delivered pursuant to
Section 2.04(a) have been prepared in accordance with
generally accepted accounting principles consistently
applied throughout the periods involved as explained in the
notes to such financial statements. The TLL financial
statements present fairly, in all material respects as of
their respective dates, the financial position of TTL. TTL
did not have, as of the date of any such financial
statements, except as and to the extent reflected or
reserved against therein, any liabilities or obligations
(absolute or contingent) which should be reflected therein
in accordance with generally accepted accounting principles,
and all assets reflected therein present fairly the assets
of TTL in accordance with generally accepted accounting
principles.
(c) TTL has filed or will file as of the Closing Date all tax
returns required to be filed by it from inception to the
Closing Date. All such returns and reports are accurate and
correct in all material respect. TTL has no material
liabilities with respect to the payment of any federal,
state, county, local, or other taxes (including any
deficiencies, interest, or penalties) accrued for or
applicable to the period ended on the date of the most
recent balance sheet of TTL, except to the extent reflected
on such balance sheet and all such dates and years and
periods prior thereto and for which TTL may at said date
have been liable in its own right or as transferee of the
assets of, or as successor to, any other corporation or
entity, except for taxes accrued but not yet due and
payable, and to the best knowledge of TTL, no deficiency
assessment or proposed adjustment of any such tax return is
pending, proposed or contemplated. To the best knowledge of
TTL, none of such income tax returns has been examined or is
currently being examined by the Internal Revenue Service and
no deficiency assessment or proposed adjustment of any such
return is pending, proposed or contemplated. TTL has not
made any election pursuant to the provisions of any
applicable tax laws (other than elections that relate solely
to methods of accounting, depreciation, or amortization)
that would have a material adverse affect on its financial
condition, its business as presently conducted or proposed
to be conducted, or any of its respective properties or
material assets. There are no outstanding agreements or
waivers extending the statutory period of limitation
applicable to any tax return of TTL.
2.05 Outstanding Warrants and Options. TTL has no existing warrants or
options, calls, or commitments of any nature relating to the authorized
and unissued TTL Common Stock, except as disclosed in documents which
are publicly filed or otherwise by TTL.
2.06 Information. The information concerning TTL set forth in this Agreement
is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material
fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
2.07 Absence of Certain Changes or Events. Except as set forth in this
Agreement or the schedules hereto: since the date of the most recent
TTL balance sheet described in Section 2.04 and included in the
information referred to in Section 2.06:
(a) There has not been (i) any material adverse change in the
business, operations, properties, level of inventory, assets,
or financial condition of TTL or (ii) any damage, destruction,
or loss to TTL (whether or not covered by insurance)
materially and adversely affecting the business, operations,
properties, assets, or conditions or;
(b) To the best knowledge of TTL, it has not become subject to any
law or regulation which materially and adversely affects, or
in the future would be reasonably expected to adversely
affect, the business, operations,. properties, assets, or
condition of TTL.
2.08 Litigation and Proceedings. . There are no material actions, suits, or
administrative or other proceedings pending or, to the knowledge of
TTL, threatened by or against TTL or adversely affecting TTL or its
properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before an arbitrator
of any kind. TTL does not have any knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, award,
rule, or regulation of any court, arbitrator, or governmental agency or
instrumentality.
2.09 Compliance With Laws and Regulations. TTL has complied with all
applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that
noncompliance (i) could not materially and adversely affect the
business, operations, properties, assets, or condition of TTL or (ii)
could not result in the occurrence of any material liability for TTL.
To the best knowledge of TTL, the consummation of this transaction will
comply with all applicable statutes and regulations, subject to the
preparation and filing of any form required by state and federal
securities laws.
2.10 Compliance with Securities Laws. TTL has complied with all applicable
security statutes and regulations. of any federal, state or other
governmental entity or agency thereof, including the filing of any
required documents in regards to all sales of TTL Stock. TTL makes the
additional following securities disclosures as a material inducements
to IHC to enter into this transaction:
(a) TTL's common stock is currently traded on the OTC Bulletin
Board ("OTC" or "Over-the Counter") and TTL is in compliance
with all applicable securities rules and regulations regarding
the OTC trading of its securities; and
(b) TTL voluntarily became a reporting company pursuant to section
12(g) of the Securities Exchange Act o 1934 by virtue of
filing a Form IO-SB registration statement which was approved
by the SEC and is currently effective; and
(c) TTL has filed for and been approved for a manual filing
exemption with Standard & Poor's (S&P) for 1998 and to the
best of TTL's knowledge, its securities have been and are
currently trading in compliance with applicable federal and
state blue sky securities laws; and
(d) TTL, through its approved market maker(s), has filed a current
Form 211 with the N.A.S.D. pursuant to Rule 15c-211, and has
otherwise maintained and updated the Form 211 as required by
applicable securities laws and;
(e) TTL has met all current reporting requirements of Rule 12(g)
and any other applicable securities law and regulation
applicable to TTL's trading market.
2.11 Material Contract Defaults. TTL is not in default in any material
respect under the terms of any outstanding contract, agreement, lease,
or other commitment which is material to the business, operations,
properties, assets, or condition of TTL, and there is no event of
default or other event which, with notice or lapse of time or both,
would constitute a default in any material respect under any such
contract, agreement, lease, or other commitment in, respect of which
TTL has not taken adequate steps to prevent such a default from
occurring.
2.12 No Conflict With Other Instruments. The execution of this Agreement and
the consummation of the, transactions contemplated by this Agreement
will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage,
deed of trust, or other material contract, agreement, or instrument to
which TTL is a party or to which any of its properties or operations
are subject.
2.13 TTL Schedules. TTL has delivered to IHC the following schedules, which
are collectively referred to as the "TTL Schedules" and which consist
of the following separate schedules dated as of the date of execution
of this Agreement, all certified by a duly authorized officer of TTL as
complete, true, and accurate of the date of this Agreement;
(a) A schedule including copies of the articles of incorporation and
bylaws of TTL in effect as of the date of this agreement;
(b) A schedule containing copies of resolutions adopted by the
board of directors of TTL approving this Agreement and the
transactions herein contemplated.
(c) A schedule setting forth the financial statements required pursuant
to Section 2.04(a) hereof,
(d) A schedule setting forth any other information, together with
any required copies of documents, required to be disclosed
within the TTL Schedules by Sections 2.01 through 2.13.
ARTICLE IV - REPRESENTATIONS, COVENANTS, AND WARRANTIES OF IHC
As an inducement to, and to obtain the reliance of, TTL, IHC represents and
warrants as follows:
3.01 Organization. IHC is, and will be on the Closing Date, a corporation
duly organized, validly existing, and in good standing under the laws
of the State of Florida and has the corporate power and is and will be
duly authorized, qualified, franchised, and licensed under all
applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, and
there are no other jurisdictions in which it is not so qualified in
which the character and location of the assets owned by it or the
nature of the material business transacted by it requires
qualification, except where failure to do so would not have a material
adverse effect on its business, operations, properties, assets or
condition of IHC the execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated by this Agreement
in accordance with the terms hereof will not, violate any provision of
IHC's articles of incorporation or bylaws, or other material agreement
to which it is a party or by which it is bound.
3.02 Approval of Agreement. IHC has full power, authority, and legal right
and has taken, or will take, all action required by law, its articles
of incorporation, bylaws, or otherwise to execute and deliver this
Agreement and to consummate the transactions herein contemplated. The
board of directors of IHC have authorized and approved the execution,
delivery, and performance of this Agreement and the transactions
contemplated hereby; subject to the approval of the IHC Stockholders
and compliance with state and federal corporate and securities laws.
3.03 Capitalization. The authorized capitalization of IHC consists of
100,000,000 shares of common stock $0.0001 par value, of which as of
the date hereof 8,882,000 shares are issued and outstanding. All issued
and outstanding shares of IHC are legally issued, fully paid, and
nonassessable and not issued in violation of the preemptive or other
right of any person. There are no dividends or other amounts due or
payable with respect to any of the shares of capital stock of IHC.
3.04 Financial Statements.
(a) Included in Schedule 3.04 are the unaudited Balance Sheets of IHC
as of November 30, 1998 and Statements of Income for the period
then ended.
(b) The financial statements of IHC present fairly, as of their
respective dates, the financial position of IHC. IHC did not
have, as of the date of any such balance sheets, except as and
to the extent reflected or reserved against therein, any
liabilities or obligations (absolute or contingent) which
should be reflected in any financial statements or the notes
thereto and all assets reflected therein present fairly the
assets of IHC.
(c) IHC has filed or will have filed as of the Closing Date all tax
returns required to be filed by it from inception to the Closing
Date. All such returns and reports are accurate and correct in
all material respect IHC has no material liabilities with respect
to the payment of any federal, state, county, local, or other
taxes (including any deficiencies, interest, or penalties)
accrued for or applicable to the period ended on the date of the
most recent unaudited balance sheet of IHC, except to the extent
reflected on such balance sheet and adequately provide for, and
all such dates and years and periods prior thereto and for which
IHC may at said date have been liable, its own right or as
transferee of the assets of, or as successor to, any other
corporation or entity, except for taxes accrued but not yet due
and payable, and to IHC's knowledge no deficiency assessment or
proposed adjustment of any such tax return is pending, proposed
or contemplated. Proper and accurate amounts of taxes have been
withheld by or on behalf of IHC with respect to all material
compensation paid to employees of IHC for all periods ending on
or before the date hereof, and all deposits required with respect
to compensation paid to such employees have been made in complete
compliance with the provisions of all applicable federal, state,
and local tax and other laws. To the best of IHC's knowledge,
none of such income tax returns has been examined or is currently
being examined by the Internal Revenue Service, and no deficiency
assessment or proposed adjustment of any such return is pending,
proposed or contemplated. IHC has not made any election pursuant
to the provisions of any applicable tax laws (other the elections
that relate solely to methods of accounting, depreciation, or
amortization) that would have a material adverse affect on IHC,
its financial condition, its business as presently conducted or
proposed to be conducted, or any of its properties or material
assets. There are no tax liens upon any of the assets of IHC.
There are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any tax return of
IHC.
3.05 Outstanding Warrants and Options. IHC has no issued warrants or
options, calls, or commitments of any nature relating to the authorized
and unissued IHC Common Stock which have not been disclosed herein as a
part of Article I, item 1.01 hereinabove.
3.06 Information. The information concerning IHC set forth in this Agreement
and in the schedules delivered by IHC pursuant hereto is complete and
accurate in all material respects and does not contain any statement of
a material fact or omit to state a material fact required to make the
statements made, in light of the circumstances under which they were
made, not misleading. IHC shall cause the schedules delivered by IHC
pursuant hereto to TTL hereunder to be updated after the date hereof up
to and including the Closing Date.
3.07 Absence of Certain Changes or Events. Except as set forth in this
Agreement since the date of the most recent IHC balance sheet described
in Section 3.04 and included in the information referred to in Section
3.OC:
(a) There has not been (i) any material adverse change in the
business, operations, properties level of inventory, assets,
or condition of IHC or (ii) any damage, destruction, or loss
to IHC materially adversely affecting the business,
operations, properties, assets, or conditions of IHC; and
(b) IHC has not
(i) amended its articles of incorporation or bylaws;
(ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets
of any kind whatsoever to stockholders or purchased
or redeemed, or agreed to purchase or redeem, any of
its capital stock;
(iii) waived any rights of value which in the aggregate are
extraordinary and material considering the business
of IHC;
(iv) made any material change in its method of accounting;
(v) entered into any other material transactions other than
those contemplated by this Agreement;
(vi) made any material accrual or material arrangement for
or payment of bonuses or special compensation of any
kind or any severance or termination pay to any
present or former officer or employee; or
(vii) made any material increase in any profit-sharing,
bonus, deferred compensation, insurance, pension,
retirement, or other employee benefit plan, payment,
or arrangement made to, for, or with their officers,
directors, or employees; and
(c) IHC has not
(i) granted or agreed to grant any options, warrants, or
other rights for its stocks, bonds, or other
corporate securities calling for the issuance
thereof,
(ii) borrowed or agreed to borrow any funds or incurred,
or become subject to, any material obligation or
liability (absolute or contingent) except liabilities
incurred in the ordinary course of business;
(iii) paid any material obligation or liability (absolute
or contingent) other than current liabilities
reflected in or shown on the most recent IHC balance
sheet and current liabilities incurred since that
date in the ordinary course of business;
(iv) sold or transferred, or agreed to sell or transfer,
any of its material assets, properties, or rights, or
agreed to cancel, any material debts or claims;
(v) made or permitted any amendment or termination of any
contract, agreement, or license to which it is a
party if such amendment or termination is material,
considering the business of IHC; or
(vi) issued, delivered, or agreed to issue or deliver any
stock, bonds, or other corporate securities including
debentures (whether authorized and unissued or held
as treasury stock); and
(d) To the best knowledge of IHC, it has not become subject to any
law or regulation which materially and adversely affects, or
in the future would be reasonably expected to adversely
affect, the business, operations, properties, assets, or
condition of IHC.
3.08 Title and Related Matters. Except as provided herein or disclosed in
the most recent IHC balance sheet of its properties, inventory,
interests in properties, technology, whether patented or unpatented and
assets, which are reflected in the most recent IHC balance sheet or
acquired after that date (except properties, interests in properties,
and assets sold or otherwise disposed of since such date in the
ordinary course of business), free and clear of all mortgages, liens,
pledges, charges, or encumbrances, except (i) statutory liens or claims
not yet delinquent, and (ii) such imperfections of title and easements
as do not, and will not, materially detract from or interfere with, the
present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business e operations on
such properties. To the best knowledge of IHC, its technology does not
infringe on the copyright, patent, trade secret, know-how, or other
proprietary right of any other person or entity and comprises all such
rights necessary to permit the operation of the business of IHC as now
being conducted or as contemplated.
3.09 Litigation and Proceedings. There are no material actions, suits, or
proceedings pending or, to the knowledge of IHC, threatened by or
against IHC or adversely affecting IHC, at law or in equity, before any
court or other governmental agency or instrumentality domestic or
foreign, or before any arbitrator of any kind IHC does not have any
knowledge of any default on its part with respect to any judgment,
order, writ, injunction decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality.
3.10 Material Contract Defaults. IHC is not in default in any material
respect under the terms of outstanding contract, agreement, lease, or
other commitment which is material to the business, operations, assets,
or condition of IHC, and there is no event of default or other event
which, with notice or lapse of time or both, would constitute a default
in any material respect under any such contract, agreement, lease, or
other commitment in respect of which IHC has not taken adequate steps
to prevent such a default from occurring.
3.11 No Conflict with other Instruments. The execution of this Agreement and
the consummation of the transactions contemplated by this Agreement
will not result in the breach of any term or provision or, or
constitute an event of default under, any material indenture, mortgage,
deed of trust, or other material contract, agreement, or instrument to
which IHC is a party or to which any of its properties or operations
are subject.
3.12 Governmental Authorizations. IHC has all licenses, franchises, permits,
and other governmental authorizations that are legally required to
enable it to conduct its business in all material respects as conducted
on the date of this Agreement. Except for compliance with federal and
state securities and corporation laws, as hereinafter provided, no
authorization, approval, consent, or order of, or registration,
declaration, or filing with, any court or other governmental body is
required in connection with the execution and delivery by IHC of this
Agreement and the consummation by IHC of the transactions contemplated
hereby.
3.13 Compliance With Laws and Regulations. IHC has complied with all
applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets, or condition of IHC or except to the
extent that noncompliance would not result in the occurrence of any
material liability for IHC. To the best knowledge of IHC, the
consummation of this transaction will comply with all applicable
statutes and regulations, subject to the preparation and filing of any
forms required by state and federal security laws.
3.14 Subsidiary. IHC does not own, beneficially or of record, any equity
securities in any other entity. ----------
3.15 IHC Schedules. IHC has delivered to TTL the following schedules, which
are collectively referred to as the "IHC Schedules" and which consist
of the following separate schedules dated as of the date of execution
of this Agreement, and instruments as of such date, all certified by
the chief executive officer of IHC as complete, true, and accurate:
(a) A schedule including copies of the articles of incorporation
and bylaws of IHC and all amendments thereto in effect as of
the date of this Agreement;
(b) A schedule containing copies of resolutions adopted by the
board of directors of IHC approving this Agreement and the
transactions herein contemplated as referred to in Section
3.02:
(c) A Schedule setting forth a description of any material adverse
change in the business, operations, property, inventory,
assets, or condition of IHC since the most recent IHC balance
sheet, required to be provided pursuant to Section 3.04
hereof,
(d) A schedule setting forth the financial statements required pursuant
to Section 3.01al hereof,
(e) A schedule setting forth any other information, together with
any required copies of documents, required to be disclosed in
the IHC Schedules by Sections 3.01 through 3.14.
IHC shall cause the IHC Schedules and the instruments delivered to
TTL hereunder to be updated after the date hereof up to and including a
specified date not more than three business days prior to the Closing
Date. Such updated IHC Schedules, certified in the same manner as the
original IHC Schedules, shall be delivered prior to and as a condition
precedent to the obligation of TTL to close.
ARTICLE IV - CONDITIONS PRECEDENT TO OBLIGATIONS OF IHC
The obligations of IHC under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions.
4.01 Shareholder Approval. TTL shall obtain the written consent of a
majority of its stockholders to approve the transactions contemplated
by this Agreement, including the acquisition of IHC through the
issuance of TTL common stock for all of the issued and outstanding
Shares. Said written consent shall be provided to IHC at closing.
4.02 Accuracy of Representations. The representations and warranties made by
TTL in this Agreement were true when made and shall be true at the
Closing Date with the same force and affect as if such representations
and warranties were made at and as of the Closing Date (except for
changes therein permitted by this Agreement), and TTL shall have
performed or complied with all covenants and conditions required by
this Agreement to be performed or complied with by TTL prior to or at
the Closing. IHC shall be furnished with certificates, signed by duly
authorized officers of TTL and dated the Closing Date, to the foregoing
effect.
4.03 Officer's Certificates. IHC shall have been furnished with certificates
dated the Closing Date and signed by the duly authorized chief
executive officer of TTL to the effect that to such officers best
knowledge no litigation, proceeding, investigation, or inquiry is
pending or, to the best knowledge of TTL threatened, which might result
in an action to enjoin or prevent the consummation of the transactions
contemplated by this Agreement Furthermore, based on certificates of
good standing, representations of government agencies, and TTL's own
documents and information, the certificate shall represent, to the best
knowledge of the officer, that:
(a) This Agreement has been duly approved by TTL's board of
directors and stockholders and has been duly executed and
delivered in the name and on behalf of and by its duly
authorized officers pursuant to, and in compliance with,
authority granted by the board of directors of TTL pursuant to
a unanimous consent;
(b) There have been no material adverse changes in TTL up to and
including the date of the certificate;
(c) All conditions required by this Agreement have been met, satisfied,
or performed by TTL;
(d) All authorizations, consents, approvals, registrations, and/or
filings with any governmental body agency, or court required
in connection with the execution and delivery of the documents
by TTL have been obtained and are in full force and effect or,
if not required to have been obtained, will be in full force
and effect by such time as may be required; and
(e) There is no material action, suit, proceeding, inquiry, or
investigation at law or in equity by any public board or body
pending or threatened against TTL, wherein an unfavorable
decision, ruling, or finding could have an adverse effect on
the financial condition of TTL, the operation of TTL, or the
acquisition and reorganization contemplated herein, or any
agreement or instrument by which TTL is bound or in any way
contests the existence of TTL.
4.04 No Material Adverse Change. Prior to the Closing Date. There shall not
have occurred any material adverse change in the financial condition,
business, or operations of TTL, nor shall any event have occurred
which, with the lapse of time or the giving of notice, may cause or
create any material adverse change in the financial condition,
business, or operations of TTL.
4.05 Good Standing. IHC shall have received a certificate of good standing
from the secretary of the State of Florida, certifying that TTL is in
good standing as a corporation in the State of Florida.
4.06 Other Items. IHC shall have received such further documents,
certificates, or instruments relating to the transactions contemplated
hereby as IHC may reasonably request.
ARTICLE V - CONDITIONS PRECEDENT TO OBLIGATIONS OF TTL
The obligations of TTL under this Agreement are subject to the
satisfactioN, at or before the Closing Date, of the following conditions.
5.01 Shareholder Approval. IHC shall obtain through a majority written
consent of its stockholders authorization and approval for this
Agreement and the transactions contemplated hereby.
5.02 IHC Stockholders. Holders of all of the issued and outstanding IHC
Shares or rights to acquire IHC Shares shall agree to this Agreement
and the exchange of shares contemplated by this Agreement.
5.03 Accuracy of Representations. The representations and warranties made by
IHC and the IHC Stockholders in this Agreement were correct when made
and shall be true at the Closing Date with the same force and affect as
if such representations and warranties were made at and as of the
Closing Date (except for changes therein permitted by this Agreement),
and IHC shall have performed or compiled with all covenants and
conditions required by this Agreement to be performed or complied with
by IHC prior to or at the Closing. TTL shall be furnished with a
certificate, signed by a duly authorized officer of IHC and dated the
Closing Date, to the foregoing effect.
5.04 Officer's Certificates. TTL shall have been furnished with certificates
dated the Closing Date and signed by the duly authorized chief
operating officer of IHC to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of IHC,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement.
Furthermore, based on certificates of good standing, representations of
government agencies, and IHC's own documents, the certificate shall
represent, to the best knowledge of the officer, that:
(a) This Agreement has been duly approved by IHC's board of
directors and stockholders and has been duly executed and
delivered in the name and on behalf of IHC by its duly
authorized officers pursuant to, and in compliance with,
authority granted by the board of directors of IHC pursuant to
a unanimous consent of its board of directors and a majority
consent of its stockholders or any holders of rights to
acquire IHC stock;
(b) Except as provided or permitted herein, there have been no
material adverse changes in IHC up to and including the date
of the certificate;
(c) All authorizations, consents, approvals, registrations, and/or
filing with any governmental, body, agency, or court required
in connection with the execution and delivery of the documents
by IHC have been obtained and are in full force and effect or,
if not required to have been obtained will be in full force
and effect by such time as may be required; and
(d) There is no material action, suit, proceeding, inquiry, or
investigation at law or in equity by any public board or body
pending or threatened against IHC, wherein an unfavorable
decision, ruling, or finding would have an adverse affect on
the financial condition of IHC, the operation of IHC, or the
acquisition contemplated herein, or any material agreement or
instrument by which IHC is bound or would in any way contest
the existence of IHC.
5.05 No Material Adverse Change. Prior to the Closing Date, there shall not
have occurred any material adverse change in the financial condition,
business or operations of IHC, nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause of create any
material adverse change in the financial condition business, or
operations of IHC.
5.06 Good Standing. TTL shall have received a certificate of good standing
from the appropriate authority in the State of Florida certifying that
IHC is in good standing as a corporation in the State of Florida.
5.07 Other Items. TTL shall have received such further documents
certificates or instruments relating to the transactions contemplated
hereby as TTL, may reasonably request.
ARTICLE VI - SPECIAL COVENANTS
6.01 Indemnification by IHC. IHC will indemnify and hold harmless TTL and
its directors and Officers, and each person, if any, who controls
within the meaning of the Securities Act, from and against any and all
losses, claims, damages, expenses, liabilities, or actions to which any
of them may become subject under applicable law (including the
Securities Act and the Securities Exchange Act) and will reimburse them
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any claims or actions,
whether or not resulting in liability, insofar as such losses, claims,
damages, expenses, liabilities, or actions arise out of or are based
upon any untrue statement or alleged untrue statement of material fact
contained in any application or statement file with a governmental body
or arising out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein, or
necessary in order to make the statements therein not misleading, but
only insofar as any such statement or omission was made in reliance
upon and in conformity with information furnished in writing by IHC
expressly for use therein. The indemnity agreement shall remain in full
force and effect, regardless of any investigation made by or on behalf
of TTL and shall survive consummation of the transactions contemplated
by this Agreement for a period of one year.
6.02 Indemnification by TTL. TTL will indemnify and hold harmless IHC and
the directors and Officers, and each person, if any, of IHC who
controls within the meaning of the Securities Act, from and against any
and all losses, claims, damages, expenses, liabilities, or actions to
which any of them may become subject under applicable law (including
the Securities Act and the Securities Exchange Act) and will reimburse
them for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any claims or actions,
whether or not resulting in liability, insofar as such losses, claims,
damages, expenses, liabilities, or actions arise out of or are based
upon any untrue statement or alleged untrue statement of material fact
contained in any application or statement file with a governmental body
or arising out of or are based upon the omission or alleged omission to
state therein a material: fact required to be stated therein, or
necessary in order to make the statements therein not misleading, but
only insofar as any such statement or omission was made in reliance
upon and in conformity with information furnished in writing by TTL
expressly for use therein. The indemnity agreement shall remain in full
force and effect, regardless of any investigation made by or on behalf
of IHC and shall survive consummation of the transactions contemplated
by this Agreement for a period of one year.
6.03 The Acquisition of TTL Common Stock. TTL and IHC understand and agree
that the consummation of this Agreement including the issuance of the
TTL Common Stock to IHC in exchange for the IHC Shares as contemplated
hereby, constitutes the offer and sale of securities under the
Securities Act and applicable state statutes. TTL and IHC agree that
such transactions shall be consummated in reliance on exemptions from
the registration and prospectus delivery requirements of such statutes
which depend, among other items, on the circumstances under which such
securities are acquired.
(a) In order to provide documentation for reliance upon exemptions
from the registration and prospectus delivery requirements for
such transactions, the signing of this Agreement and the
delivery of appropriate separate representations shall
constitute the parties acceptance of, and concurrence in, the
following representations in that
(i) The IHC Stockholders acknowledge that neither the SEC
nor the securities commission of any state or other
federal agency has made any determination as to the
merits of acquiring TTL Common Stock, and that this
transaction involves certain risks.
(ii) IHC Shareholders have such knowledge and experience
in business and financial matters that they are
capable of evaluating such business risks.
(iii) All information which the IHC Stockholders have
provided to TTL or the representatives concerning
their suitability and intent to hold shares in TTL
following the transactions contemplated hereby is
complete accurate and correct.
(iv) The IHC Stockholders understand that the TTL Common Stock
has not been registered but is being acquired by reason of a
specific exemption under the Securities Act as well as under
certain state statutes for transactions not involving any
public offering and that any disposition of the subject TTL
Common Stock: may, under certain circumstances, be
inconsistent with this exemption and may make IHC or TTL an
underwriter within the meaning of the Securities Act. It is
understood that the definition of "underwriter" focuses upon
the concept of "distribution" and that any subsequent
disposition of the subject TTL Common Stock can only be
effected in transactions which are not considered
distributions. Generally, the term "distribution" is
considered synonymous with "public offering" or any other
offer or sale involving general solicitation or general
advertising. Under present law, in determining whether a
distribution occurs when securities are sold into the public
market, under certain circumstances one must consider the
availability of public information regarding the issuer, a
holding period for the securities sufficient to assure that
the persons desiring to sell the securities without
registration first bear the economic risk of their
investment, and a limitation on the number of securities
which the stockholder is permitted to sell and on the manner
of sale, thereby reducing the potential impact of the sale
on the trading markets. These criteria are set forth
specifically in rule 144 promulgated under the Securities
Act, and, one year after the date the TTL Common Stock or
IHC Shares are fully paid for, as calculated in accordance
with rule 144(d) sales of securities in reliance upon rule
144 can only be made in limited amounts in accordance with
the terms and conditions of that Rule and after two years
from the date the securities are fully paid for, as
calculated in accordance with rule 144(d) may generally be
sold without meeting those conditions, provided the holder
is not (and has not been for the preceding three months) an
affiliate of the issuer.; (v) The IHC Stockholders
acknowledge that the shares of TTL Common Stock must be held
and may not be sold, transferred, or otherwise disposed of
for value unless they are subsequently registered under the
Securities Act or an exemption from such registration is
available. TTL is not under any obligation to register the
TTL Common Stock under the Securities Act. If rule 144 is
available after one year and prior to two years following
the date the shares are fully paid for, only routine sales
of such TTL Common Stock in limited amounts can be made in
reliance upon rule 144 in accordance with the terms and
conditions of that rule TTL is not under any obligation to
make rule 144 available except as set forth in this
Agreement and in the event rule 144 is not available,
compliance with Regulation A or some other disclosure
exemption may be required before IHC Stockholders can sell,
transfer, or otherwise dispose of such TTL Common Stock
without registration under the Securities Act. Subject to
compliance with federal and state securities laws, TTL's
registrar and transfer agent will maintain a stop transfer
order against the registration or transfer of the TTL Common
Stock held by IHC; Stockholders and the certificates
representing the TTL Common Stock will bear a legend in
substantially the form hereinabove set forth so restricting
the sale of such securities:
(vi) TTL. will require IHC Stockholder to provide an
opinion of counsel reasonably acceptable to TTL
stating that the transfer is proper. TTL agrees to
provide IHC with assistance and cooperation in good
faith when IHC seeks to sell any shares which are
free from restrictions or exempt therefrom
(b) In connection with the transactions contemplated by this
Agreement, TTL shall file with the assistance of its legal
counsel, such notices, applications, reports, or other
instruments as may be deemed by it to be necessary or
appropriate in an effort to document reliance on such
exemptions, and with the appropriate regulatory authority in
the states where the IHC Stockholders reside unless an
exemption requiring no filing is available in such
jurisdictions, all to the extent and in the manner as may be
deemed by TTL to be appropriate.
(c) The IHC Stockholders acknowledge that the basis for relying on
exemptions from registration or qualifications are factual,
depending on the conduct of the various parties, and that no
legal opinion or other assurance will be required or given to
the effect that the transactions contemplated hereby are in
fact exempt from registration or qualification.
6.04 Securities Filings. TTL shall be responsible for the preparation and
filing of any required forms, or documents, deemed necessary by TTL and
its legal counsel, with the Securities and Exchange Commission and in
jurisdictions which would require a filing with a governmental agency
as a result of the transactions contemplated in this Agreement.
6.05 Sales of Securities Under Rule 144 if Applicable.
(a) TTL will use its best efforts to at all times satisfy the
current public information requirements of rule 144
promulgated under the Securities Act so that its stockholders
can sell restricted securities that have been held for one
year or more or such other restricted period as required by
rule 144 as it is from time to time amended.
(b) Upon being informed in writing by any person holding
restricted stock of TTL as of the date of this Agreement that
such person intends to sell any shares under rule 144
promulgated under the Securities Act (including any rule
adopted in substitution or replacement thereof), TTL will
certify in writing to such person that it is in compliance
with rule 144 current public information requirements to
enable such person to sell such person's restricted stock
under rule 144, as may be applicable under the circumstances.
(c) If any certificate representing any such restricted stock is
presented to TTL's transfer agent for registration or transfer
in connection with any sales theretofore made under rule 144,
provided such certificate is duly endorsed for transfer by the
appropriate person(s) or accompanied by a separate stock power
duly executed by the appropriate person(s) in each case with
reasonable assurances that such endorsements are genuine and
effective, and is accompanied by an opinion of counsel
satisfactory to TTL and its counsel that such transfer has
complied with the requirements of rule 144, as the case may
be, TTL will use its best efforts to cooperate with the
shareholder and/or transfer agent with the registration or
transfer in connection with any sales made under rule 144.
ARTICLE VII - MISCELLANEOUS
The covenants set forth in this section shall survive the Closing Date and
the consummation of the transactions herein contemplated.
7.01 Brokers. TTL and IHC agree that there were no finders or brokers
involved in bringing the parties together or who were instrumental in
the negotiation, execution, or consummation of this Agreement. Further,
TTL and IHC each agree to indemnify the other against any claim by any
third person for any commission, brokerage, or finder's fee or other
payment with respect to this Agreement or the transactions contemplated
hereby based on any alleged agreement or understanding between such
party and such third person, whether express or implied, from the
actions of such party.
7.02 No Representation Regarding Tax Treatment. No representation or warranty is
being made by any party to any other regarding the treatment of this
transaction for federal or state income taxation. Each party has relied
exclusively on its own legal, accounting, and other tax adviser regarding
the treatment of this transaction for federal and state income taxes and on
no representation, warranty, or assurance from any other party or such
other party's legal, accounting, or other adviser.
7.03 Governing Law. This Agreement shall be governed by, enforced and construed
under and in accordance with the laws of the -------------- State of
Florida. 7.04 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered, if
sent by facsimile or telecopy transmission or other electronic
communication confirmed by registered or certified mail, postage prepaid,
or if sent by prepaid overnight courier addressed as follows:
If to TTL at 7887 Bryan Dairy Road, Suite 105, Largo, Florida 33777
If to IHC at 7887 Bryan Dairy Road, Suite 105, Largo, Florida 33777
or such other addresses as shall be furnished in writing by any
party any such notice or communication shall be deemed to have been
given as of the date so delivered or sent by facsimile or telecopy
transmission or other electronic communication, or one day after the
date so sent by overnight courier.
7.05 Attorney Fees. In the event that any party institutes any action or
suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall
reimburse the nonbreaching party or parties for all costs, including
reasonable attorneys' fees, incurred in connection therewith and in
enforcing or collecting any judgment rendered therein.
7.06 Schedules Knowledge. Whenever in any section of this Agreement
reference is made to information set forth in the schedules provided by
TTL or IHC, such reference is to information specifically set forth in
such schedules and clearly marked to identify the section of this
Agreement to which the information relates. Whenever any,
representation is made to the "knowledge" of any party, it shall be
deemed to be a representation that no officer or director of such
party, after reasonable investigation, has any knowledge of such
matters.
7.07 Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. All previous
agreements between the parties, whether written or oral, have been
merged into this Agreement. This Agreement alone fully and completely
expresses the agreement of the parties relating to the subject matter
hereof. There are no other courses of dealing, understandings,
agreements, representations, or warranties, written or oral, except as
set forth herein.
7.08 Survival of Termination. The representations, warranties, and covenants
of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of
six months from the Closing Date, unless otherwise provided herein.
7.09 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
7.10 Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and such remedies may be enforced concurrently,
and no waiver by any party of the performance of any obligation by the
other shall be construed as a waiver of the same or any other default
then, theretofore, or thereafter occurring or existing. At any time
prior to the Closing Date, this Agreement may be amended by a writing
signed by all parties hereto, with respect to any of the terms
contained herein and any term or condition of this Agreement may be
waived or the time for performance thereof may be extended by a writing
signed by the party or parties for whose benefit the provision is
intended.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective officers, hereunto duly authorized, as of the
date first above written.
TOUPS TECHNOLOGY INTERSOURCE HEALTHCARE, INC.
LICENSING, INC.
By: S/S LEON H. TOUPS By: S/S JAMES DOULGERIS
Leon H. Toups James Doulgeris
Chief Executive Officer Chief Executive Officer
Chairman of the Board Director
Executed November 30, 1998
Exhibit A to the
Exchange of Share Agreement by and between
Toups Technology Licensing, Inc. and InterSource Health Care, Inc.
InterSource Health Care, Inc.
Shareholder Register
1:1 .113:1
Shareholder IHC Shares PPM Shares TTL Shares
James Doulgeris 2,440,000 275,720
Leon H. Toups 2,360,000 266,680
Michael P. Toups 1,180,000 133,340
Mark Clancy 1,180,000 133,340
Kirk Cianciolo 400,000 45,200
Chunyang Jiang 250,000 28,250
John Sliwoski 212,000 23,956
Nicholas J. Sears 200,000 22,600
Robert Barnes 100,000 11,300
Greg Jewell 50,000 5,650
Leslie D. Reagin, III 50,000 5,650
Errol J. & Stella W.
Lasseigne Living Trust 50,000 5,650
George J. Doulgeris 40,000 4,520
John N. Doulgeris 25,000 2,825
Steven Levin 25,000 2,825
Lester Sturtridge 25,000 2,825
Jeffrey Weatherbee 20,000 2,260
Michele Goldstein 20,000 2,260
Patricia Grove 20,000 2,260
Mary Slaughter 10,000 1,130
Stephen R. Wood and
Diane M. Wood 30,000 30,000
Michael W. Cianciolo 30,000 30,000
Virgil Todd & Theresa
Todd, Joint Tenant with
Right of Survivorship 30,000 30,000
Mark S. & Ellen Stern as
Tenants by the 30,000 30,000
Entirety Mark S. and Ellen
Stern Irrevocable Children's
Trust for: (1/3) Elliot
Benjamin Stern, (1/3) Lennie Beth
Stern, (1/3) Zachary Adam Stern 15,000 15,000
Robert Kudelko 15,000 15,000
Revocable Living Trust of
Todd & Katherine Sider 15,000 15,000
Gregory S. Ayers 15,000 15,000
Carla J. Patteri, Trustee,
U.T.A., DTD. 15,000 15,000
George T. Fritze &
Carole J. Fritze 15,000 15,000
Kevin S. Rowe 15,000 15,000
Total 8,657,000 225,000
Total InterSource 8,882,000
Total TTL 1,203,241
