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EXHIBIT 2.1
ACQUISITION AND STOCK EXCHANGE AGREEMENT
This Acquisition and Stock Exchange Agreement ("Agreement") is made on
this 15th day of May, 2000, by and between Toups Technology Licensing, Inc.
("TTL"), a Florida corporation, and John Stanton ("Stanton"), individually, and
as agent and attorney-in-fact for Ralph Hughes ("Hughes"), Joel Perlman, Trustee
for the Michigan Trust ("Trust"), and Frank Redmond ("Redmond") (all of whom are
collectively referred to herein as "Other Shareholders").
R E C I T A L S:
A. TTL is a technology development and licensing company. TTL has
expended substantial funds to develop and commercialize technology, including,
but not limited to a shallow oil well recovery system known as the "BOR's Lift"
and the development of patent pending processes for both solid and liquid waste
recycling referred to herein as "Licensed Technologies".
B. Stanton and the Other Shareholders own Octofoil International Group,
Inc. ("Octofoil") and Strategic Acquisition Corporation ("SAC-1") These
companies are Florida corporations that operate businesses, including, but not
limited to recycling, environmental, demolition, scrap metal and related
businesses. These companies, Stanton and the Other Shareholders have access to
capital, lines of credit and other funding which may be needed by TTL.
C. TTL is desirous of exchanging certain of its common shares for
Stanton and the Other Shareholders shares in Octofoil and SAC-1. It is the
parties' intention that this exchange be a tax free, stock for stock exchange
pursuant to Section 368 and other relevant provisions of the Internal Revenue
Code.
D. At the conclusion of this transaction, it is the intention of the
parties that Octofoil and SAC-1 will be wholly-owned subsidiaries of TTL and
that Stanton and the Other Shareholders will own a significant potion of all
issued and outstanding or potentially outstanding shares of TTL.
E. In connection with this Agreement. John Stanton will become the
Chief Executive Officer and TTL will be operated by the Directors and others set
forth in Paragraph 10 hereof.
F. The parties desire to enter into this Agreement to complete and
effectuate the transaction described herein and to take such further action as
may be necessary to conclude and complete the effectuation of this transaction
and the parties intent.
Therefore, in consideration of Ten ($10.00) Dollars, the mutual
promises set forth herein and other good and valuable consideration, the parties
hereby agree as follows:
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1. ACQUISITION OF OCTOFOIL AND SAC-1
1.1 The Octofoil Shares and the SAC-1 Shares
TTL does hereby acquire all issued and outstanding shares of Octofoil
and SAC-1, from Stanton, Hughes,Trust and Redmond. In exchange for the
acquisition of all issued and outstanding shares of SAC-1, TTL does hereby
exchange and transfer to John Stanton 10,587,500 common shares of TTL, subject
to a restrictive legend in the form annexed hereto as Exhibit "A" and does
hereby exchange and transfer to Hughes 8,662,500 common shares of TTL, subject
to a restrictive legend in the form annexed hereto as Exhibit "A", and does
hereby exchange and transfer to Trust 5,000,000 common shares in the form
annexed hereto as Exhibit "A" and does hereby exchange and transfer to Redmond
1,000,000 common shares in the form annexed hereto as Exhibit "A" and does
hereby exchange and transfer to William J. Kardash 1,000,000 common shares of
TTL, subject to a restrictive legend in the form annexed hereto as Exhibit "A"
and does hereby exchange and transfer to Walter Holmich 250,000 common shares of
TTL, subject to a restrictive legend in the form annexed hereto as Exhibit "A".
All shares issued to Stanton and the Other Shareholders enjoy piggyback
registration rights. Octofoil has elected to transfer its assets to SAC-1, in
lieu of issuing shares and a copy of the Bill of Sale transferring all
Octofoil's assets to SAC-1 is annexed hereto as Exhibit "B". Simultaneously
herewith, Stanton and Hughes have endorsed all their shares in SAC-1, such
shares being 100% of all issued and outstanding shares in favor of TTL and have
authorized that these shares be re- registered and a certificate issued to TTL
evidencing TTL's 100% ownership of SAC-1. A copy of this Stock Certificate is
annexed hereto as Exhibit "C".
1.2 Tax Free Exchange
It is the parties' intention that the exchange of shares under this
Agreement, pursuant to Sections 1.1, 1.2, and 1.3 are intended to be a tax free,
stock for stock exchange within the meaning of Internal Revenue Code Section,
including, but not limited to Section 368. Therefore, the parties agree that on
their corporate and individual tax returns, they shall truthfully and completely
characterize this transaction as an exchange and will cooperate and will file
the individual or joint filing of all exchange disclosure forms, documents,
instruments or other papers necessary to qualify and obtain tax free exchange
treatment of the exchange shares.
1.3 Amendment to TTL Articles
TTL has executed Amended and Restated Articles of Incorporation
authorizing the issuance of additional shares as contemplated and necessary to
effectuate this Agreement to amend the corporate name so that the company will
be named and known as Earth First Technologies, Inc. and such other amendments
as are contained in the Amended and Restated Articles of TTL annexed hereto as
Exhibit "D". TTL shall immediately file the Amended and Restated Articles with
the Florida Secretary of State.
1.4 Amendments to Octofoil and SAC-1 Articles
Octofoil and SAC-1 have executed Amended and Restated Articles of
Incorporation authorizing the issuance of additional shares as contemplated and
necessary to effectuate this
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Agreement and such other amendments as are contained in the Amended and Restated
Articles of Octofoil are annexed hereto as Exhibit "E" and of SAC-1 annexed
hereto as Exhibit "F". Octofoil and SAC-1 shall immediately file the Amended and
Restated Articles with the Florida Secretary of State.
1.5 Further Documentation
The parties agree that the final structure and form of the transfers
called for herein may be modified or altered as necessary to maximize the
financial and tax treatment of the transactions for the parties, provided the
consideration to be given by each party shall not be changed.
2. TTL WARRANTIES
TTL and its wholly-owned subsidiaries represent, jointly and severally,
as of the date hereof and as of the closing date, that:
2.1 Organization
TTL has been duly organized under the laws of the State of Florida and
are valid existing and in good standing with requisite power and authority to
own their properties and to transact the business in which they are now engaged.
TTL is duly qualified to do business in each jurisdiction where they are
required to be qualified in connection with their properties, businesses and
operations. TTL possess all rights, licenses, permits and authorizations
governmental or otherwise, necessary to entitle it to own or hold real, personal
or intangible property and to transact the business in which it is now engaged.
2.2 Proceedings
TTL has taken all steps necessary to authorize the execution, delivery
and performance of this Agreement, all exhibits which constitute agreements and
all related documents or instruments. Copies of the resolutions of TTL's Board
of Directors authorizing this Agreement and all related documents and
instruments are annexed hereto as composite Exhibit "G". This Agreement and all
related documents or instruments have been duly executed and delivered by or on
behalf of TTL and constitutes legal, valid and binding obligations of TTL
enforceable against it in accordance with their respective terms.
2.3 No Conflicts
The execution, delivery and performance of this Agreement and all
related documents will not conflict or result in a breach of any terms or
provisions of or constitute default under it, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property or assets
of TTL, nor result in any violation of any statute, order, article of
incorporation, bylaw, voting trust, SEC ruling or oversight, rule or regulation,
Court, governmental, or administrative order or the requirements of any
governmental agency or body having jurisdiction over TTL. Further, no
administrative, Court, government body, regulatory,
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shareholder or other authorization or consent is required for the execution,
delivery and performance of this Agreement by TTL.
2.4 Litigation
There are no actions, suits or proceedings at law or in equity, before
a government tribunal, administrative agency, government agency or otherwise
that is now pending or threatened by any person or entity, against TTL or its
subsidiaries and to the best of TTL's knowledge, after diligent inquiry, there
is no basis for any action, suit or proceeding that might affect TTL, its
subsidiaries or their properties, except those matters expressly disclosed by
name, content and posture on Exhibit "H" annexed hereto.
2.5 Agreements
TTL and its subsidiaries are not parties to any agreement or instrument
subject to any restriction which is violated by entering into this Agreement or
any restriction of any kind or nature that might materially and adversely affect
TTL or its business, properties, assets, operations or conditions, financial or
otherwise. TTL is not in default in any material respect in the performance,
observation or fulfillment of any obligation, covenant, condition,
representation (whether written or oral), of any contract or agreement made in
favor of any other party, whether in writing or otherwise, except as disclosed
on Exhibit "I", which exhibit shall also describe the terms of cure for any such
defaults.
2.6 Title
TTL, directly or through wholly-owned subsidiaries, holds good,
marketable and defeasible title and all rights to exploit the Licensed
Technologies. By virtue of an Absolute Assignment, all such right, title and
interest are vested in Etech and since the date of such Assignment, it has not
been modified or altered and there is no written, oral, express, assumed or
other understanding of any kind or nature to divest or alter Etech of its rights
to the Licensed Technologies. Neither TTL nor its subsidiaries have placed any
liens or other encumbrances against the Licensed Technologies nor have made any
agreements with any other person or entity for license, use or exploitation of
the Licensed Technologies which have not been terminated prior to or
contemporaneously herewith. The Licensed Technologies are free and clear of all
liens, claims or encumbrances of all third parties and entities, do not infringe
on any other patents, licenses or intellectual property rights of third parties
and are capable of being used without restriction.
2.7 Financial Information
TTL has delivered to Stanton and the Other Shareholders copies of its
last two years audited financial statements and a balance sheet, profit and loss
statement from the date of the last audit to March 31, 2000 and a copy of its
most recent 10K filing, a copy of which is annexed hereto as Exhibit "J".
Stanton and the Other Shareholders also have the right at all times to review
all financial books and records of TTL. Stanton and the Other Shareholders have
also
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been presented a detailed list of TTL's current outstanding actual and
contingent liabilities, including accounts payable and TTL's schedule for
payment of such liabilities. All financial information provided and annexed
hereto are true, correct and complete in all material respects, accurately
represent the financial condition of TTL as of the date of such reports and are
prepared in accordance with GAAP throughout the periods covered. Except as
provided in the financial information disclosed, TTL has no contingent
liabilities, liabilities for taxes (except those expressly disclosed in the
10K), long term commitments and unrealized losses in connection therewith or
knowledge of any fact likely to have a material adverse affect on TTL.
2.8 No Bankruptcy Filing
Neither TTL nor its subsidiaries is contemplating the filing of a
petition under any state or federal bankruptcy or insolvency laws or the
liquidation of all or a major portion of their assets or property and neither
TTL nor its subsidiaries have any knowledge that any person is contemplating the
filing of any such petition against it.
2.9 Full and Accurate Disclosure
There are no additional facts, documents, computer data or other
information relating to the Licensed Technology except those contained and
described on Exhibit "K". In addition, all statements of fact, including the
recitals made by TTL or its subsidiaries are true and correct and no material
fact has been omitted that would make the statements or representations made
herein false or misleading. There is no material fact presently known to either
TTL which has not been disclosed to Stanton and the Other Shareholders which
might materially affect Stanton and the Other Shareholder's commercial
exploitation of the Licensed Technology.
2.10 No Plan Assets
TTL and its subsidiaries are not an "employee benefit plan" as defined
in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of
TTL or its subsidiaries constitutes or will constitute "plan assets" of one or
more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition,
(i) TTL and its subsidiaries are not a "governmental plan" within the meaning of
Section 3(32) of ERISA and (ii) transactions by or with Borrower are not subject
to state statutes regulating investment of, and fiduciary obligations with
respect to, governmental plans.
2.11 Compliance
TTL and its subsidiaries are not in default or violation of any order,
writ, injunction, decree or demand or any Governmental Authority, the violation
of which might materially adversely affect the condition (financial or
otherwise) or business of TTL and its subsidiaries. There has not been and shall
never be committed by TTL and its subsidiaries or, to the best of TTL or its
subsidiaries' knowledge after diligent inquiry and investigation, any other
person in occupancy of or involved with the operation of use of the Licensed
Technologies, any act or omission affording the federal government or any state
or local government the right of forfeiture
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as against the Licensed Technologies or any part thereof or any monies paid in
performance of TTL's or its subsidiaries' obligations under the Agreement. TTL
and its subsidiaries hereby covenants and agrees not to commit, permit or suffer
to exist any act or omission affording such right of forfeiture.
2.12 Stock Issuance and Related Transactions
TTL has issued preferred shares, debentures, other convertible debt
only in accordance with the terms of the Agreements annexed hereto as Exhibit
"L". In addition, since December 31, 1999, no common stock has been issued or
warrants, options or other agreements or promises to issue stock has been
granted through the date of closing except as disclosed on Exhibit "M".
2.13 Not a Foreign Person
TTL and its subsidiaries are not "foreign persons" within the meaning
of Section 1445(f)(3) of the Code.
2.14 Assessments
TTL and its subsidiaries do hereby warrant that there are no pending
tax, special assessment, state or federal intangibles, tax or excise tax or any
other public or private assessment of any kind or nature against any of them or
the Licensed Technology unless described in the attached 10K.
2.15 Liability Insurance
TTL and its subsidiaries are aware of no claims arising out of the
construction or use of any prototypes of products of the Licensed Technologies
and further warrant and represent that any liability for personal injury or
property damage or for products liability is insured pursuant to those policies
of insurance annexed hereto as Exhibit "N".
2.16 Illegal Activity
Neither TTL nor its subsidiaries have engaged in any illegal activity,
violated any law or rule governing the registration, solicitation or sale of
securities, nor have issued any warrant, option, stock certificate, debenture or
any other security in violation of applicable law. Further, TTL and its
subsidiaries warrant and represent that no proceeds received by them from any
source have been misappropriated or used for any illegal activity.
2.17 License Agreements
TTL and its subsidiaries warrant that all assignments and license
agreements are in full force and effect and there is no default thereunder by
any party thereto and no event has occurred, that with the passage of time and
the giving of notice, would constitute a default hereunder.
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2.18 Executory Contracts
Except for the licenses, assignments and royalty agreements previously
described herein, TTL and its subsidiaries are parties only to those executory
contracts listed in Exhibit "O".
2.19 No Other Licenses
Except for the licenses, assignments of patents and royalty agreement
in favor of TTL, TTL nor its wholly-owned subsidiaries are aware of any other
license, assignment of patent, royalty agreement or other such or similar
agreement from the licensor or inventor in favor of any party other than TTL and
TTL has no knowledge of any third party infringing or using the Licensed
Technology with or without any form of agreement.
2.20 SEC Compliance
TTL is in full compliance with all SEC requirements for its operation
and to retain its NASD, OTC BB. TTL will remain fully compliant with all SEC
requirements.
2.21 Warranties Constitute Continuing Covenants
All the warranties made by TTL and its subsidiaries hereunder shall, in
addition to being prior and current warranties, shall constitute continuing
covenants that will be maintained affirmatively at all times during the terms of
this Agreement.
2.22 Survival of Representations
TTL and its subsidiaries agree that all representations and warranties
set forth in this Section 2 or elsewhere in this Agreement, in any exhibit or in
any other document executed in connection with this Agreement shall survive the
Closing and the full term of this Agreement. All representations, warranties,
covenants and agreements made by either party hereto shall be deemed to have
been relied upon by either party notwithstanding any investigation heretofore or
hereafter made by either party.
3. OCTOFOIL WARRANTIES
Octofoil, as of the date hereof and as of the closing date, warrants
and represents that:
3.1 Organization
Octofoil has been duly organized under the laws of the State of Florida
and are valid existing and in good standing with requisite power and authority
to own its properties and to transact the business in which it is now engaged.
Octofoil is duly qualified to do business in each jurisdiction where it is
required to be qualified in connection with its properties, businesses and
operations. Octofoil possess all rights, licenses, permits and authorizations
governmental or
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otherwise, necessary to entitle it to own or hold real, personal or intangible
property and to transact the business in which it is now engaged.
3.2 Proceedings
Octofoil has taken all steps necessary to authorize the execution,
delivery and performance of this Agreement, all exhibits which constitute
agreements and all related documents or instruments. Copies of the resolutions
of Octofoil's Board of Directors authorizing this Agreement and all related
documents and instruments are annexed hereto as composite Exhibit "P". This
Agreement and all related documents or instruments have been duly executed and
delivered by or on behalf of Octofoil and constitute legal, valid and binding
obligations of Octofoil enforceable against them in accordance with their
respective terms.
3.3 No Conflicts
The execution, delivery and performance of this Agreement and all
related documents will not conflict or result in a breach of any terms or
provisions of or constitute default under it, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property or assets
of Octofoil, nor result in any violation of any statute, order, article of
incorporation, bylaw, voting trust, Court, governmental, or administrative order
or the requirements of any governmental agency or body having jurisdiction over
Octofoil.
3.4 Litigation
There are no actions, suits or proceedings at law or in equity, before
a government tribunal, administrative agency, government agency or otherwise
that is now pending or threatened by any person or entity, against Octofoil and
to the best of Octofoil's knowledge, after diligent inquiry, there is no basis
for any action, suit or proceeding that might affect Octofoil or its properties,
except those matters expressly disclosed by name, content and posture on Exhibit
"Q" annexed hereto.
3.5 Agreements
Octofoil is not party to any agreement or instrument subject to any
restriction which is violated by entering into this Agreement or any restriction
of any kind or nature that might materially and adversely affect Octofoil or its
business, properties, assets, operations or conditions, financial or otherwise.
Octofoil is not in default in any material respect in the performance,
observation or fulfillment of any obligation, covenant, condition,
representation (whether written or oral), of any contract or agreement made in
favor of any other party, whether in writing or otherwise, except as disclosed
on Exhibit "R", which exhibit shall also describe the terms of cure for any such
defaults.
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3.6 Title
Octofoil holds good, marketable and defeasible title and all rights to
its assets. Octofoil has not placed any liens or other encumbrances against its
stock or assets except as disclosed in Exhibit "S" nor has made any agreements
with any other person or entity for the sale, use, or other disposition of
Octofoil's assets.
3.7 Financial Information
Octofoil has provided TTL with its financial statements and a balance
sheet, profit and loss statement for its last year and through March 31, 2000.
Exhibit "S" contains a summary of Octofoil's relevant financial information. TTL
acknowledges that it has had full access and the right to review all Octofoil's
financial information. All financial information provided and annexed hereto is
true, correct and complete in all material respects, accurately represent the
financial condition of Octofoil as of the date of such reports and are prepared
in accordance with GAAP throughout the periods covered. Except as provided in
the financial information disclosed, Octofoil has no contingent liabilities,
liabilities for taxes, long term commitments and unrealized losses in connection
therewith or knowledge of any fact likely to have a material adverse affect on
Octofoil.
3.8 No Bankruptcy Filing
Octofoil is not contemplating the filing of a petition under any state
or federal bankruptcy or insolvency laws or the liquidation of all or a major
portion of their assets or property and Octofoil has no knowledge that any
person is contemplating the filing of any such petition against it.
3.9 Full and Accurate Disclosure
Statements of fact, including the recitals made by Octofoil are true
and correct and no material fact has been omitted that would make the statements
or representations made herein false or misleading.
3.10 No Plan Assets
Octofoil is not an "employee benefit plan" as defined in Section 3(3)
of ERISA, subject to Title I of ERISA, and none of the assets of Octofoil
constitutes or will constitute "plan assets" of one or more such plans within
the meaning of 29 C.F.R. Section 2510.3-101. In addition, (i) Octofoil is not a
"governmental plan" within the meaning of Section 3(32) of ERISA and (ii)
transactions by or with Borrower are not subject to state statutes regulating
investment of, and fiduciary obligations with respect to, governmental plans.
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3.11 Compliance
Octofoil is not in default or violation of any order, writ, injunction,
decree or demand or any Governmental Authority, the violation of which might
materially adversely affect the condition (financial or otherwise) or business
of Octofoil.
3.12 Not a Foreign Person
Octofoil is not "foreign persons" within the meaning of Section
1445(f)(3) of the Code.
3.13 Assessments
Octofoil does hereby warrant that there are no pending tax, special
assessment, state or federal intangibles, tax or excise tax or any other public
or private assessment of any kind or nature against Octofoil or its property.
3.14 Illegal Activity
Octofoil has not engaged in any illegal activity, violated any law or
rule governing the registration, solicitation or sale of securities, nor have
issued any warrant, option, stock certificate, debenture or any other security
in violation of applicable law. Further, Octofoil warrants and represents that
no proceeds received by them from any source have been misappropriated or used
for any illegal activity. Octofoil has not engaged in any illegal activities,
violated any law or rule.
3.15 Executory Contracts
Except for the licenses, assignments and royalty agreements previously
described herein, Octofoil is a party only to those executory contracts listed
in Exhibit "T".
3.16 Warranties Constitute Continuing Covenants
All the warranties made by Octofoil hereunder shall, in addition to
being prior and current warranties, shall constitute continuing covenants that
will be maintained affirmatively at all times during the terms of this
Agreement.
3.17 Survival of Representations
Octofoil agrees that all representations and warranties set forth in
this Section 5 or elsewhere in this Agreement, in any exhibit or in any other
document executed in connection with this Agreement shall survive the Closing
and the full term of this Agreement. All representations, warranties, covenants
and agreements made by either party hereto shall be deemed to have been relied
upon by either party notwithstanding any investigation heretofore or hereafter
made by either party.
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4. SAC-1 WARRANTIES
SAC-1, as of the date hereof and as of the closing date, warrants and
represents that:
4.1 Organization
SAC-1 has been duly organized under the laws of the State of Florida
and are valid existing and in good standing with requisite power and authority
to own their properties and to transact the business in which it is now engaged.
SAC-1 are duly qualified to do business in each jurisdiction where it is are
required to be qualified in connection with its properties, businesses and
operations. SAC-1 possess all rights, licenses, permits and authorizations
governmental or otherwise, necessary to entitle it to own or hold real, personal
or intangible property and to transact the business in which it is now engaged.
4.2 Proceedings
SAC-1 has taken all steps necessary to authorize the execution,
delivery and performance of this Agreement, all exhibits which constitute
agreements and all related documents or instruments. Copies of the resolutions
of SAC-1's Board of Directors authorizing this Agreement and all related
documents and instruments are annexed hereto as composite Exhibit "U". This
Agreement and all related documents or instruments have been duly executed and
delivered by or on behalf of SAC-1 and constitutes legal, valid and binding
obligations of SAC-1 enforceable against them in accordance with their
respective terms.
4.3 No Conflicts
The execution, delivery and performance of this Agreement and all
related documents will not conflict or result in a breach of any terms or
provisions of or constitute default under it, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property or assets
of SAC-1, nor result in any violation of any statute, order, article of
incorporation, bylaw, voting trust, Court, governmental, or administrative order
or the requirements of any governmental agency or body having jurisdiction over
SAC-1. Further, no administrative, Court, government body, regulatory,
shareholder or other authorization or consent is required for the execution,
delivery and performance of this Agreement by SAC-1.
4.4 Litigation
There are no actions, suits or proceedings at law or in equity, before
a government tribunal, administrative agency, government agency or otherwise
that is now pending or threatened by any person or entity, against SAC-1 and to
the best of SAC-1's knowledge, after diligent inquiry, there is no basis for any
action, suit or proceeding that might affect SAC-1 or their properties, except
those matters expressly disclosed by name, content and posture on Exhibit "V"
annexed hereto.
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4.5 Agreements
SAC-1 is not party to any agreement or instrument subject to any
restriction which is violated by entering into this Agreement or any restriction
of any kind or nature that might materially and adversely affect SAC-1 or its
business, properties, assets, operations or conditions, financial or otherwise.
TTL is not in default in any material respect in the performance, observation or
fulfillment of any obligation, covenant, condition, representation (whether
written or oral), of any contract or agreement made in favor of any other party,
whether in writing or otherwise, except as disclosed on Exhibit "W", which
exhibit shall also describe the terms of cure for any such defaults.
4.6 Title
SAC-1 holds good, marketable and defeasible title and all rights to its
property, free and clear of all liens and encumbrances except those disclosed on
Exhibit "X".
4.7 Financial Information
SAC-1 has provided TTL with its last year's end financial statements
and a balance sheet, profit and loss statement from the date of the last year's
end to March 31, 2000. A summary of relevant financial information is annexed
hereto as Exhibit "Y". The financial information provided by SAC-1 to TTL
included all liabilities, contingent liabilities, including accounts payable and
SAC-1's schedule for payment of such liabilities. All financial information
provided and annexed hereto are true, correct and complete in all material
respects, accurately represent the financial condition of SAC-1 as of the date
of such reports and are prepared in accordance with GAAP throughout the periods
covered. Except as provided in the financial information disclosed, SAC-1 has no
contingent liabilities, liabilities for taxes (except those expressly disclosed
in the budget), long term commitments and unrealized losses in connection
therewith or knowledge of any fact likely to have a material adverse affect on
SAC-1.
4.8 No Bankruptcy Filing
SAC-1 is not contemplating the filing of a petition under any state or
federal bankruptcy or insolvency laws or the liquidation of all or a major
portion of their assets or property and SAC-1 has no knowledge that any person
is contemplating the filing of any such petition against it.
4.9 Full and Accurate Disclosure
There are no additional facts, documents, computer data or other
information relating to the Licensed Technology except those contained and
described on Exhibit "Z". In addition, all statements of fact, including the
recitals made by SAC-1 are true and correct and no material fact has been
omitted that would make the statements or representations made herein false or
misleading.
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4.10 No Plan Assets
SAC-1 is not an "employee benefit plan" as defined in Section 3(3) of
ERISA, subject to Title I of ERISA, and none of the assets of SAC-1 constitutes
or will constitute "plan assets" of one or more such plans within the meaning of
29 C.F.R. Section 2510.3-101. In addition, (i) SAC-1 is not a "governmental
plan" within the meaning of Section 3(32) of ERISA and (ii) transactions by or
with Borrower are not subject to state statutes regulating investment of, and
fiduciary obligations with respect to, governmental plans.
4.11 Compliance
SAC-1 is not in default or violation of any order, writ, injunction,
decree or demand or any Governmental Authority, the violation of which might
materially adversely affect the condition (financial or otherwise) or business
of SAC-1.
4.12 Not a Foreign Person
SAC-1 is not "foreign persons" within the meaning of Section 1445(f)(3)
of the Code.
4.13 Assessments
SAC-1 does hereby warrant that there are no pending tax, special
assessment, state or federal intangibles, tax or excise tax or any other public
or private assessment of any kind or nature against any of them or the Licensed
Technology.
4.14 No Change in Facts or Circumstances
All information submitted by SAC-1 to Stanton and the Other
Shareholders and all statements of fact of any kind or nature made in connection
with this transaction that are material to Stanton and the Other Shareholders or
its owners are set forth on Exhibit "AA" hereto. Except for these
representations, and the financial and technical information provided, which is
previously discussed herein, SAC-1 warrant that no change has occurred that
would materially affect the accuracy and completeness of the representations
made and that no event or passage of time has caused these representations to
become inaccurate or misleading.
4.15 Illegal Activity
SAC-1 has not engaged in any illegal activity, violated any law or rule
governing the registration, solicitation or sale of securities, nor have issued
any warrant, option, stock certificate, debenture or any other security in
violation of applicable law. Further, SAC-1 warrants and represents that no
proceeds received by them from any source have been misappropriated or used for
any illegal activity. Stanton and the Other Shareholders have not engaged in any
illegal activities, violated any law or rule. SAC-1 has not engaged in any
illegal activities, violated any law or rule.
<PAGE> 14
4.16 Executory Contracts
Except for the licenses, assignments and royalty agreements previously
described herein, SAC-1 are parties only to those executory contracts listed in
Exhibit "BB".
4.17 Warranties Constitute Continuing Covenants
All the warranties made by SAC-1 hereunder shall, in addition to being
prior and current warranties, shall constitute continuing covenants that will be
maintained affirmatively at all times during the terms of this Agreement.
4.18 Survival of Representations
SAC-1 agree that all representations and warranties set forth in this
Section 5 or elsewhere in this Agreement, in any exhibit or in any other
document executed in connection with this Agreement shall survive the Closing
and the full term of this Agreement. All representations, warranties, covenants
and agreements made by either party hereto shall be deemed to have been relied
upon by either party notwithstanding any investigation heretofore or hereafter
made by either party.
5. STANTON'S AND OTHER SHAREHOLDERS' WARRANTIES
5.1 Ownership of Shares
Stanton and the Other Shareholders hereby warrant that they are the
sole owners of the Octofoil and SAC-1 shares exchanged hereunder and that such
shares have been transferred free and clear of all liens, claims and interests
of any persons or entities.
5.2 Potential Claims
Stanton and the Other Shareholders represent that there are no pending
or threatened actions that could give rise to a claim, lien or encumbrance on
the stock transferred and exchanged herein.
6. PUBLIC DISCLOSURE OF TRANSACTIONS
6.1 This Agreement
The parties shall only disclose this Agreement and its specific terms
and conditions to the extent required by applicable law. The parties shall make
a joint press release immediately after the closing of this transaction, but has
not disclosed this transaction except to employees and attorneys and accountants
to the parties necessary to effectuate the agreement.
<PAGE> 15
6.2 Future Agreements
Future agreements between the parties shall only be disclosed as
necessary under applicable law.
7. NATURE OF THE RELATIONSHIP
7.1 Contractual Relationship
The parties acknowledge that their only relationship is a contractual
relationship and that the parties do not owe any fiduciary or other duty to one
another except for the duties imposed by this contract.
7.2 No Agency, Joint Venture or other Relationship
The parties acknowledge that they will not hold themselves out as an
agent, partner or co-venturer of the other and that this Agreement is not
intended and does not create an agency, partnership, joint venture or any other
type of relationship except the license and contract relationships established
hereby.
7.3 No Undisclosed Dealings
The parties acknowledge that they have not been induced to execute this
Agreement by promises of compensation, in cash or kind, from the other and that
there are no side agreements, side dealings or undisclosed dealings between the
parties affecting or relating to this Agreement except as contained herein.
8. DEFAULTS AND REMEDIES
The parties agree that the breach of any warranties, terms or
conditions hereof may be enforced by the other in accordance with applicable law
and the remedies provided herein. However, the parties agree that no claim may
be brought on any warranty or representation or other breach hereunder if not
brought within twelve (12) months from the date hereof.
9. DISPUTE RESOLUTION
9.1 Arbitration
The parties have selected as their sole means for resolving matters of
interpretation, construction of this Agreement or the existence of a default or
damages or remedies hereunder by binding arbitration pursuant to the rules of
the American Arbitration Association.
<PAGE> 16
9.2 Arbitration Notice
In the event a party determines that there is a valid dispute, matter
for interpretation, issue of construction, default or such other similar need
for third party intervention and determination of the parties' rights under this
Agreement, the parties seeking such determination shall give an arbitration
notice stating that it intends to initiate an arbitration proceeding in thirty
days if the matters set forth with specificity in the arbitration notice are not
resolved in thirty days. This shall not prevent either party from, within the
thirty days, sending out appropriate default or termination notices or such
other notices as may be appropriate under this Agreement.
9.3 Location of Arbitration
The arbitration under this Agreement shall be held in Clearwater,
Florida.
9.4 Makeup of Panel
The arbitration panel shall consist of a professional commercial
arbitrator, a CPA with background and credentials in technology and
technology-related companies and a arbitrator with credentials as a Chief
Operating Officer of a research and development company.
9.5 Binding Decision
The arbitration intended by this Agreement is binding arbitration and
may be confirmed by a court of competent jurisdiction but does not require any
further judicial action and shall be deemed non-appealable.
9.6 Injunction
The requirement of binding arbitration shall not preclude either
parties' ability to obtain temporary injunctive relief in a court of competent
jurisdiction to protect or preserve rights hereunder and such injunctive relief
shall be considered ancillary to the arbitration proceedings.
10. RESIGNATIONS AND APPOINTMENTS
10.1 Contemporaneous with the execution of this Agreement, the existing
Board of TTL shall resign and a new Board of at least 5 directors shall be
designated. The following persons are hereby appointed to the new Board to serve
until the next date set for elections under the applicable by-laws:
John Stanton
Philip M. Rappa
10.2 The resignations of the existing Board are annexed hereto as
Exhibit "DD".
10.3 The new and reconstituted Board shall immediately elect John
Stanton, CEO, Leon
<PAGE> 17
Toups, Executive Vice President in charge of Research and Development, Philip M.
Rappa as Chief Operating Officer, a new public company qualified CFO to serve in
the positions and at the will of the new and reconstituted Board.
10.4 The reconstituted Board shall consider and approve appropriate
indemnification agreements for former Board members or officers who have
guaranteed any obligations of the company.
11. MISCELLANEOUS
11.1 Waivers.
No waiver of any default shall be implied from any delay or omission by
the parties to take action on account of such default, and no express waiver
shall affect any default other than the default specified in the waiver and it
shall be operative only for the time and to the extent therein stated.
11.2 Benefit.
This Agreement is made and entered into for the sole protection and
benefit of TTL, its subsidiaries and Stanton and the Other Shareholders, their
successors and assigns, and no other person or persons have any right to action
hereon or rights as a third party beneficiary as a result of the execution of
this Agreement.
11.3 Assignment.
The terms hereof shall be binding upon and inure to the benefit of the
heirs, successors, assigns, and personal representatives of the parties hereto.
11.4 Amendments.
This Agreement shall not be amended except by a written instrument
signed by all parties hereto.
11.5. Terms.
Whenever the context and construction so require, all words used in the
singular number herein shall be deemed to have been used in the plural, and vice
versa, and the masculine gender shall include the feminine and neuter and the
neuter shall include the masculine and feminine.
This Agreement is the product of intensive negotiations between the parties, and
as such the identity of the drafter shall not be relevant in construction of
this Agreement.
<PAGE> 18
11.6 Governing Law and Jurisdiction.
This Agreement and all matters relating thereto shall be governed by
and construed and interpreted in accordance with the laws of the State of
Florida. The parties hereby submit to the jurisdiction of the state and federal
courts located in Pinellas County, Florida.
11.7. Savings Clause.
Invalidation of any one or more of the provisions of this Agreement
shall in no way effect any of the other provisions hereof, which shall remain in
full force and effect.
11.8. Execution in Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same instrument, and in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
11.9 Captions.
The captions herein are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope of this
Agreement nor the intent of any provision hereof.
11.10 Time is of the Essence.
The term of this shall be the term of the licenses to the Licensed
Technology granted hereunder and any extensions thereof. Time is of the essence
as to this Agreement.
11.11 Entire Understanding.
This Agreement constitutes the entire understanding between the
parties, and all prior or contemporaneous oral agreements, understandings,
representations and statements are merged into this Agreement.
11.12 Notices.
Any and all notices, designations, consents, offers, acceptances, or
any other communication provided for herein shall be given in writing by
certified mail or by reputable overnight courier service, e.g. Federal Express,
which shall be addressed as follows:
John Stanton
Post Office Box 24567
Tampa, FL 33623
<PAGE> 19
Mike Carey, Esquire
712 S. Oregon Street
Tampa, FL 33606
TTL
c/o Leon Toups
7887 Bryan Dairy Road
Suite 105
Largo, FL 33777
Domenic L. Massari, III,
601 S. Fremont Avenue
Tampa, FL 33606
11.13 Survival.
The representations and warranties and provisions of this Agreement
shall survive any closing hereunder.
11.14 Attorneys' Fees.
In the event that any party is required to engage the services of legal
counsel to enforce its rights under this Agreement against any other party,
regardless of whether such action results in litigation, the prevailing party
shall be entitled to reasonable attorneys' fees and costs from the other party,
which in the event of litigation shall include fees and costs incurred at trial,
on appeal, and incident to any bankruptcy proceeding.
11.15 WAIVER OF JURY TRIAL.
BY ACCEPTANCE HEREOF, THE PARTIES AGREE THAT NONE OF THEM SHALL SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDINGS, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY INSTRUMENT
EVIDENCING OR RELATING TO THIS AGREEMENT. NONE OF THE PARTIES WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, AND THESE PROVISIONS SHALL
BE SUBJECT TO NO EXCEPTIONS.
11.16 Closing
The Closing shall take place on May 15, 2000 at 1:00 P.M. at the
offices of Massari Law Group. All funds, documents and exhibits called for
herein shall be delivered at or prior to Closing.
<PAGE> 20
IN WITNESS WHEREOF, TTL, John Stanton, individually and as agent have
executed this Acquisition and Stock Exchange Agreement as of the above written
date.
WITNESSES TOUPS TECHNOLOGY LICENSING, INC.
/s/ Mark Clancy
--------------------- By: /s/ Leon Toups
--------------------------------
Mark Clancy Leon Toups, President
---------------------
Printed Name
---------------------
/s/ Domenic Massari
---------------------
Domenic Massari
---------------------
Printed Name
/s/ Mark Clancy /s/ John Stanton
---------------------- ------------------------------------
John Stanton, individually, and
Mark Clancy as an agent for
----------------------
Printed Name
/s/ Domenic Massari
----------------------
Domenic Massari
----------------------
Printed Name
JOINDER AND CONSENT
The following persons or entity do hereby join in and consent to the
Agreement and all terms thereof:
Octofoil
By: /s/ John Stanton /s/ Joel Perlman
------------------------- ------------------------------
President Joel Perlman, Trustee for the
Michigan Trust
SAC-1
By: /s/ John Stanton /s/ Ralph Hughes
------------------------- ------------------------------
President Ralph Hughes
<PAGE> 21
/s/ Frank Redmond
-------------------------------
Frank Redmond
/s/ William J. Kardash
-------------------------------
William J. Kardash
/s/ Walter Holmich
-------------------------------
Walter Holmich
