EXHIBIT 2.0
ACQUISITION AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT is made this 14th day of September, 2000, by
and between First Philadelphia Capital Corp., a Delaware corporation
("FPC") and Conservation Anglers Manufacturing, Inc., a Florida
corporation ("CAM").
RECITALS
WHEREAS, the total authorized capital stock of CAM consists
of 1000 shares of common stock, par value $1.00 per share, of which
1000 shares are issued and outstanding (Common Stock hereinafter
referred to as the "CAM Shares"); and
WHEREAS, FPC desires to acquire all of the issued and
outstanding capital stock of CAM, or 1000 shares of Common Stock
("CAM Shares") for 4,700,000 shares of common stock of FPC ("FPC
Shares") by exchanging 4700 FPC Share for each CAM Shares; and
WHEREAS, CAM agrees to pay FS Capital Markets Group Inc. a
consulting fee in connection with this merger transaction, which is
detailed in the Consulting Agreement dated August 17, 2000.
WHEREAS, in reliance on and subject to the terms and
conditions, representations, warranties, covenants and agreements
herein contained, CAM desires to sell the CAM Shares to FPC, and FPC
desires to purchase the CAM Shares in a stock for stock exchange.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and for other good and value
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. PURCHASE AND SALE.
Section 1.1 AGREEMENT TO PURCHASE AND EXCHANGE. In reliance
on and subject to the terms, conditions, representations,
warranties, covenants and agreements herein contained, CAM shall
assign, transfer and convey unto FPC, and FPC shall purchase all of
the CAM Shares in a tax free reorganization.
Section 1.2 PURCHASE PRICE. The aggregate purchase price
for the CAM Shares (the "Purchase Price") shall be 4,700,000 FPC
Shares.
Section 1.3 CLOSING. The closing of the transaction
contemplated in this Agreement (the "Closing") shall take place at
the offices of First Philadelphia Capital Corp., 1422 Chestnut
Street, Suite 410, Philadelphia, PA 19102 on or around the date
first written above or at such other date, time or place as shall be
mutually acceptable to the parties (the "Closing Date").
Section 1.4 TRANSACTIONS BEFORE CLOSING. Upon the signing of
this Agreement, CAM shall deliver a fee based on a separate
agreement with FS Capital Markets Group Inc. by wire transfer to an
account specified by FS Capital Markets Group Inc., $40,000 cash, as
specified under Section 2(b) of the Consulting Agreement.
Section 1.4 TRANSACTIONS AND DOCUMENTS AT AND AFTER CLOSING.
(a) At the Closing, CAM shall deliver to FPC certificates
representing 1000 shares of CAM, duly endorsed for transfer, and
after Closing, a fee based on a separate agreement with FS Capital
Markets Group Inc., of which CAM shall deliver to FS Capital Markets
Group Inc. by wire transfer to an account specified by FS Capital
Markets Group Inc., $40,000 cash, upon the filing of the initial 8K
report to the U.S. Securities and Exchange Commission, as specified
under Section 2(c) of the Consulting Agreement.
(b) At the Closing, FPC shall deliver to CAM the 4,700,000
FPC Shares representing the Purchase Price for the CAM Shares,
calculated as set forth hereinabove, and bearing an appropriate
legend restricting transfer except as permitted under Rule 144 of
the Securities Act of 1933, as amended.
(c) From time to time and at any time, at FPC's request,
whether on or after the Closing Date, and without further
consideration, CAM shall, at its own expense except as otherwise
provided in this Agreement, execute and deliver such further
documents and instruments of conveyance and transfer and shall take
such further actions as may be necessary or convenient, in the
reasonable opinion of FPC, to transfer and convey to FPC, all of its
right, title and interest in and to the CAM Shares, free and clear
of any lien or adverse claim.
(d) From time to time and at any time, at CAM's request,
whether on or after the Closing Date, and without further
consideration, FPC shall, at its own expense except as otherwise
provided in this Agreement, execute and deliver such further
documents and instruments of conveyance and transfer and shall take
such further actions as may be necessary or convenient in the
reasonable opinion of CAM, to transfer and convey to CAM, all of its
right, title and interest in and to the FPC Shares free and clear of
any lien or adverse claim.
2. ADDITIONAL AGREEMENTS.
Section 2.1 FPC'S ACCESS AND INSPECTION. CAM has allowed
and shall allow FPC and its authorized representatives full access
during normal business hours from and after the date hereof and
prior to the Closing Date to all of CAM's properties, books,
contracts, commitments and records for the purpose of making such
investigation as FPC may desire, and CAM shall furnish FPC such
information concerning CAM's affairs as FPC may request. FPC has
caused and shall cause CAM's personnel to assist FPC in making such
investigation and shall cause the counsel, accountants, engineers
and other non-employee representatives of CAM to be reasonably
available to FPC for such purposes.
Section 2.2 CAM'S ACCESS AND INSPECTION. FPC shall allow
CAM and its authorized representatives access during normal business
hours from and after the date hereof and prior to the Closing Date
to such of FPC's properties, books, contracts, commitments and
records as CAM may reasonably request for the purpose of determining
the financial condition of FPC. FPC shall cause FPC's personnel to
assist CAM in making such investigation and shall cause the counsel,
accountants, engineers and other non-employee representatives of FPC
to be reasonably available to CAM for such purposes.
Section 2.3 COOPERATION. The parties shall cooperate fully
with each other and with their representatives, counsel and
accountants in connection with any steps required to be taken as
part of their respective obligations under this Agreement, and will
use their best efforts to consummate the transactions contemplated
hereby and fulfill their obligations hereunder.
Section 2.4 EXPENSES. All of the expenses incurred by FPC
in connection with the authorization, preparation, execution and
performance of this Agreement by FPC, including without limitation
all fees and expenses of agents, representatives, counsel and
accountants for FPC, shall be paid by FPC. All expenses incurred by
CAM in connection with the authorization, preparation, execution and
performance of this Agreement, including without
limitation all fees and expenses of agents, representatives, counsel
and accountants, shall be paid by CAM.
Section 2.5 BROKERS. Each party hereto jointly and
severally represents and warrants that no broker or finder other
than FS Capital Markets Group Inc. has acted on its behalf in
connection with this Agreement or the transactions contemplated
herein and each party shall indemnify the other and save it harmless
from any claim or demand for commission or other compensation by any
broker, finder or similar agent claiming to have been employed by or
on behalf of such party.
3. REPRESENTATIONS AND WARRANTIES OF CAM.
CAM represents, covenants and warrants to FPC as follows:
Section 3.1 CORPORATE EXISTENCE/STANDING/AUTHORITY. CAM is
a corporation duly organized, validly existing and in good standing
under the laws of Florida and has the corporate power and authority
to own, operate and lease its respective properties, to carry on its
business as now being conducted, and to enter into this Agreement
and to carry out the transactions contemplated hereby. CAM is duly
qualified to do business and is in good standing in each
jurisdiction where the failure to qualify would have a material
adverse affect on it. CAM has delivered to FPC or its counsel true
and correct copies of the articles of incorporation and by-laws of
CAM, together with any amendments thereto.
Section 3.2 SHARES OF STOCK. All issued and outstanding
shares of capital stock of CAM have been duly authorized and validly
issued and are fully paid and nonassessable. Conservation Anglers
Manufacturing, Inc. has 1000 shares of common stock authorized and
1000 shares of common stock issued and outstanding. There is no
other class of capital stock, subscription, option, warrant, call,
right, contract, commitment, understanding or arrangement relating
to the issuance, sale or transfer by CAM of any shares of its
capital stock, including any right of conversion or exchange under
any outstanding security or other instrument.
Section 3.3 AUTHORITY. CAM has the full right and authority
to enter into and fully perform this Agreement and all other
agreements and documents to be delivered to FPC in connection
herewith. All actions required to be taken by CAM to authorize the
execution, delivery and performance of this Agreement and all other
agreements and documents to be delivered in connection herewith have
been or will by the Closing Date be properly taken. This Agreement
constitutes the valid and binding obligation of CAM. Neither the
execution and delivery of this Agreement and all other agreements
and documents executed in connection herewith nor the consummation
of the transactions contemplated hereby nor the performance of this
Agreement and all other agreements and documents executed in
connection herewith will (1) conflict with or result in a breach of
any provision of the certificate of incorporation or by-laws of CAM,
(2) violate, conflict with, or result in a breach of any provision
of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the
termination or in a right of termination or cancellation of, or
accelerate the performance or the payment of money required by, or
result in the creation of any lien, security interest, charge or
encumbrance upon any of CAM's properties under any of the terms,
conditions or provisions of any loan agreement, note, bond,
mortgage, indenture, lease, agreement or other instrument or
commitment to which CAM is a party, or by which CAM or its
properties may be bound or affected or (3) violate any order, writ,
injunction, decree, judgment, or ruling of any court or governmental
authority specifically applicable to CAM or any of its properties.
Section 3.4 NO VIOLATION. Except as set forth on Schedule
3.4, to the best knowledge of CAM, CAM has complied with all rules,
regulations, codes and laws affecting its business and operations
and is not in default under, or in violation of, any provision of
any federal, state or local rule, regulation, code or law nor has
CAM been given notice of any such default or violation.
Section 3.5 LICENSES AND RIGHTS. CAM possesses all
franchises, easements, licenses, permits and other authorizations
from governmental or regulatory authorities and from all other
persons or entities that are necessary to permit it to engage in its
business as presently conducted in and at all locations and places
where it is presently operating. Such franchises, licenses, permits
and other authorizations are set forth on Schedule 3.5.
Section 3.6 CONSENTS. Except as set forth on Schedule 3.6
hereto, no approval or consent of any person, firm or other entity
or body is required to be obtained by CAM for the authorization of
this Agreement or the consummation by CAM of the transactions
contemplated hereby.
Section 3.7 NO DEFAULTS. Except as set forth on Schedule
3.7, to the best knowledge of CAM, no default (or event which with
the passage of time or the giving of notice or both would become a
default) exists or is alleged to exist with respect to the
performance of any material obligation of CAM under the terms of any
material indenture, license, mortgage, deed of trust, lease, note,
guaranty or other contract or instrument, including, but not limited
to, any contract set forth on Schedule 3.17, to which CAM is a party
or to which its assets are subject, or by which it is otherwise
bound, and no such default or event exists or is alleged to exist
with respect to the performance of any obligation of any other party
thereto.
Section 3.8 FINANCIAL STATEMENTS. FPC has been or will be
furnished with the audited financial statements of CAM (the
"Financial Statements"). CAM must prepare within sixty (60) days
from the Closing Date audited financial statements to be filed with
the U.S. Securities and Exchange Commission. The CAM financial
statements will be prepared in accordance with generally accepted
accounting principles and applied on a consistent basis throughout
the periods indicated. The CAM financial statements will present
fairly the financial condition of CAM as of the date indicated
thereon, and such Statements of Earnings, and Cash Flows and
Retained Earnings will present fairly the results of its respective
operations for the period indicated thereon.
Section 3.9 ABSENCE OF CERTAIN CHANGES. Except as set forth
on Schedule 3.9 hereto, since September 15, 2000, CAM has actively
conducted its business in the ordinary and regular course. Since
that date, there has not been any material adverse change in the
condition (financial or otherwise), results of operations, assets,
liabilities, properties, business or prospects of CAM nor is any
event threatened which would cause such an adverse change, nor has
there occurred any event or governmental regulation or order
restricting the business of CAM.
Section 3.10 FACILITIES AND EQUIPMENT. The personal
property owned or leased by CAM at its facility for the operation
of, or used in, its business is in its possession or under its
control and is adequate for the operation of such business as
presently conducted.
Section 3.11 TITLE TO ASSETS. Except as set forth on
Schedule 3.11 or in the Financial Statements, CAM has good, valid
and marketable title to all of its real property and leasehold
estates and good and valid title to all of its other assets
(tangible and intangible), including, but not limited to, all
leasehold improvements and equipment and all other properties and
assets reflected or required to be reflected in the Financial
Statements and all properties and assets purchased or leased by it
since the dates of such Financial Statements (except for properties
and assets so reflected or required to be reflected which have been
sold or otherwise disposed of in the ordinary course of business),
subject to no liens, pledges, encumbrances, mortgages, security
interests, charges or other similar restrictions of any nature
whatsoever. Except as set forth on Schedule 3.11, CAM enjoys
peaceful and quiet possession of its properties and assets pursuant
to or by all of the deeds, bills of sale, leases, licenses and other
agreements under which it is operating its business.
Section 3.12 ABSENCE OF UNDISCLOSED LIABILITIES. CAM does
not have any material liabilities or obligations, either accrued or
unaccrued, fixed or contingent, which have not been reflected in the
Financial Statements or set forth on Schedule 3.12 hereof.
Section 3.13 LITIGATION. Schedule 3.13 hereof sets forth a
list of all administrative or judicial proceedings to which CAM is a
party. Except as set forth on Schedule 3.13, there is no action,
suit, claim, demand, arbitration or other proceeding, administrative
or judicial, pending or, to the best knowledge of CAM, threatened
against or relating to CAM which, if adversely determined or
resolved, would materially and adversely affect the financial
condition, results of operations, business or prospects of CAM.
Section 3.14 PATENTS AND TRADEMARKS.
(a) Except as set forth on Schedule 3.14(a), CAM does not
own, or operate under, any patent, trademark or service mark or any
applications therefor. All trade names (including those whose use
is limited to one or more states of the United States) owned or used
by CAM are listed on Schedule 3.14 hereof and, to the extent
indicated therein, have been duly registered with the states of the
United States or the corresponding offices of other countries.
Except as set forth on Schedule 3.14, CAM is the sole and exclusive
owner of, or has the sole and exclusive power with respect to, or
has the sole and exclusive right to use, the trade names specified
on Schedule 3.14.
(b) Except as set forth on Schedule 3.14(b) hereof, CAM has
not ever been charged with infringement or violation of any
adversely held trademark, trade name or copyright.
(c) Except as set forth on Schedules 3.14(a) and 3.14(b),
there are no claims or demands of any other person, firm or
corporation pertaining to the trade names, copyright registrations
or pending copyright registration applications, as the case may be,
listed on such schedules, and no proceedings have been instituted
which challenge the right of CAM in respect thereof.
Section 3.15 EMPLOYEE BENEFITS.
(a) Schedule 3.15 hereof contains a list of (i) each
pension, profit sharing, bonus, deferred compensation, or other
retirement plan or arrangement for the benefit of any employee or
group of employees of CAM or any independent contractors or group of
independent contractor of CAM, (ii) each medical, health,
disability, insurance or other plan or arrangement of CAM, and (iii)
each employee stock option plan or other plan providing for the
purchase of shares of capital stock of CAM. All of such plans and
arrangements of CAM are referred to herein as the "employee benefit
plans".
(b) The amounts reflected in the Financial Statements as
liabilities or contingent liabilities with respect to employee
benefit plans have been calculated in accordance and compliance with
applicable law, including accounting principles relating thereto.
(c) All of the employee benefit plans maintained by CAM (and
each funding medium which may be attendant thereto) are in
compliance with applicable law and all reporting and disclosure
requirements under applicable laws and regulations, and have been
administered and operated in accordance with their respective
provisions and applicable law. There are no actions, suits or
claims (other than routine claims for benefits) pending with respect
to the employee benefit plans.
(d) CAM has filed, published and disseminated all reports,
documents, statements and communications which are required to be
filed, published or disseminated under applicable law and the rules
and regulations promulgated thereunder relating to, and have timely
made all modifications and amendments to, the employee benefit plans.
Section 3.16 TAXES AND TAX RETURNS. CAM has duly filed all
income, franchises and other tax returns and reports required to be
filed by it and has duly paid or made provisions for the payment of
all taxes (including any interest or penalties) which are due and
payable pursuant to such returns. CAM has withheld proper and
accurate amounts from their employees' compensation in substantial
compliance with all withholding and similar provisions of applicable
law. There are and will hereafter be no tax deficiencies (including
penalties and interest) of any kind assessed against CAM with
respect to any period ending on or before the Closing Date.
Section 3.17 CONTRACTS. CAM has heretofore furnished to FPC
or its counsel true and complete copies of each document, and a
written description of each oral contact, set forth on Schedule 3.17
hereof. Schedule 3.17 is a true and complete list of all contracts,
understandings, commitments, arrangements and agreements of the
following types, including all amendments thereto to which CAM is a
party:
(a) Contracts relating to equipment purchases, or series of
similar equipment purchases from the same supplier, involving an
expenditure of, or if in a series, expenditures in the aggregate of,
more than twenty-five thousand dollars ($25,000);
(b) Bonus, incentive, pension, profit-sharing,
hospitalization, insurance, deferred compensation, retirement, stock
option or stock purchase plans or similar plans providing employee
benefits;
(c) Factoring, loan, note, financing or similar contracts
with any lenders or guarantees of undertakings to answer for the
debts or defaults of another, or any contracts encumbering title to
any properties, involving in each case, or if in a series involving
the same lender, guarantor or property, as the case may be, in the
aggregate, at least twenty-five thousand dollars ($25,000);
(d) contracts for the acquisition or disposition of a
business or substantially all of the property, assets or capital
stock or other securities of a business or company under which there
are continuing or unperformed obligations on the part of any of the
parties hereto, which contracts in each case involve at least
twenty-five thousand dollars ($25,000);
(e) Conditional sales contracts, leases of personal
property or contracts for the purchase or sale of real or personal
property, involving in each case at least twenty-five thousand
dollars ($25,000);
(f) Management or consulting contracts, involving in each
case, or with respect to any individual in the aggregate, at least
twenty-five thousand dollars ($25,000);
(g) Contracts for the furnishing of services or products to
or by CAM, involving an expenditure in each case of at least
twenty-five thousand dollars ($25,000);
(h) Royalty or licensing contracts or contracts requiring
similar payments to unrelated parties individually, or with respect
to any unrelated party in the aggregate, involving or which
reasonably may in the future involve an amount in excess of
twenty-five thousand dollars ($25,000) annually;
(i) All employment agreements between CAM and any of its
employees; and
(j) All agreements, contracts and commitments not listed on
any other schedule hereto which individually involve the payment of
twenty-five thousand dollars ($25,000) or more.
Except as set forth on Schedule 3.17, all such contracts,
understandings, commitments, arrangements and agreements are in full
force and effect.
Section 3.18 COLLECTIVE BARGAINING AGREEMENTS. Schedule
3.18 hereof is a list of all collective bargaining agreements with
any labor organization to which CAM is a party. The relations of
CAM with its employees are good and there are no impending labor
difficulties.
Section 3.19 INSURANCE. CAM is insured by insurers
unaffiliated with CAM or CAM with respect to its properties and the
conduct of its business in such amounts and against such risks as
are generally and prudently maintained for comparable businesses and
consistent with its past practice.
Section 3.20 REAL PROPERTY.
(a) Schedule 3.20 hereof sets forth a true and complete list
of (i) all real property owned by CAM and (ii) all real property
leases to which CAM is a party. CAM has heretofore furnished to FPC
or its counsel true and complete copies of each written contract and
a written description of each oral contract relating to the list set
forth on Schedule 3.20.
(b) With respect to the leases described on Schedule 3.20,
except as setforth on Schedule 3.20;
(i) "All such leases are in writing and duly executed, and,
where required, witnessed, acknowledged and recorded to make them
valid and binding and in full force and effect for the full term
thereof, and none have been modified;
(ii) The rental set forth in each such lease is the actual
rental being paid, and there are no separate agreements or
understandings with respect to the same not set forth in Schedule 3.20;
(iii) The lessee under each such lease has the full right
to exercise any renewal option contained therein and upon due
exercise will be entitled to enjoy the use of the premises for the
full term of such renewal option;
(iv) Upon performance by the lessee of the terms of each
such lease, the lessee has the full right to enjoy the use of the
premises demised thereunder for the full term thereof; and
(v) Except as set forth on Schedule 3.20, all security
deposits required by such leases have been made and no forfeiture
with respect thereto claimed in whole or in part, by any of the
lessors.
Section 3.21 MATERIAL MISSTATEMENTS OR OMISSIONS. No
representations or warranties made by CAM under this Agreement or in
any certificate, schedule or other document furnished or to be
furnished to FPC or its counsel pursuant hereto, or in connection
with the transactions contemplated by this Agreement, contains or
will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements
of fact contained therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF FPC.
FPC represents, covenants and warrants to CAM as follows:
Section 4.1 CORPORATE EXISTENCE/STANDING/AUTHORITY. FPC is
a corporation duly organized, validly existing and in good standing
under the laws of Delaware and has the corporate power and authority
to own, operate and lease its respective properties, to carry on its
business as now being conducted, and to enter into this Agreement
and to carry out the transactions contemplated hereby. FPC is duly
qualified to do business and is in good standing in each
jurisdiction were the failure to qualify would have a material
adverse affect on it. FPC has delivered to CAM or its counsel true
and correct copies of the articles of incorporation and by-laws of
FPC, together with any amendments thereto.
Section 4.2 SHARES OF STOCK. FPC has authorized 20,000,000
shares of common stock of which there are presently issued and
outstanding 5,000,000 shares of common stock. FPC agrees to acquire
all of the issued and outstanding capital stock of CAM, or 1000
shares of Common Stock ("CAM Shares") for 4,700,000 shares of common
stock of FPC ("FPC Shares") by exchanging 4700 FPC Share for each
CAM Shares. FPC has authorized 5,000,000 shares of preferred stock.
None of the 5,000,000 shares of preferred stock is issued and
outstanding. All issued and outstanding shares of capital stock of
FPC have been duly authorized and validly issued and are fully paid
and nonassessable. There is no subscription, option, warrant, call,
right, contract commitment, understanding or arrangement relating to
the issuance, sale or transfer by FPC of any shares of its capital
stock, including any right of conversion or exchange under any
outstanding security or other instrument.
Section 4.3 AUTHORITY. FPC has the full right and authority
to enter into and fully perform this Agreement and all other
agreements and documents to be delivered to CAM in connection
herewith. All actions required to be taken by FPC to authorize the
execution, delivery and performance of this Agreement and all other
agreements and documents to be delivered in connection herewith have
been or will by the Closing Date be properly taken. This Agreement
constitutes the valid and binding obligation of FPC. Neither the
execution and delivery of this Agreement and all other agreements
and documents executed in connection herewith nor the consummation
of the transactions contemplated hereby nor the performance of this
Agreement and all other agreements and documents executed in
connection herewith will (1) conflict with or result in a breach of
any provision of the certificate of incorporation or by-laws of FPC,
(2) violate, conflict with, or result in a breach of any provision
of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the
termination or in a right of termination or cancellation of, or
accelerate the performance or the payment of money required by, or
result in the creation of any lien, security interest, charge or
encumbrance upon any of FPC's properties under any of the terms,
conditions or provisions of any loan agreement, note, bond,
mortgage, indenture, lease, agreement or other instrument or
commitment to which FPC is a party, or by which FPC or its
properties may be bound or affected or (3) violate any order, writ,
injunction, decree, judgment, or ruling of any court or governmental
authority specifically applicable to FPC or any of its properties.
Section 4.4 NO VIOLATION. Except as set forth on Schedule
4.4, to the best knowledge of FPC, FPC has complied with all rules,
regulations, codes and laws affecting its business and operations
and is not in default under, or in violation of, any provision of
any federal state or local rule, regulation, code or law nor has FPC
been given notice of any such default or violation.
Section 4.5 LICENSES AND RIGHTS. FPC possesses all
franchises, easements, licenses, permits and other authorizations
from governmental or regulatory authorities and from all other
persons or entities that are necessary to permit it to engage in its
business as presently conducted in and at all locations and places
where it is presently operating. Such franchises, licenses, permits
and other authorizations are set forth on Schedule 4.5.
Section 4.6 CONSENTS. Except as set forth on Schedule 4.8
hereto, no approval or consent of any person, firm or other entity
or body is required to be obtained by FPC for the authorization of
this Agreement or the consummation by FPC of the transactions
contemplated hereby.
Section 4.7 NO DEFAULTS. Except as set forth on Schedule
4.7, to the best knowledge of FPC, no default (or event which with
the passage of time or the giving of notice or both would become a
default) exists or is alleged to exist with respect to the
performance of any obligation of FPC under the terms of any
indenture, license, mortgage, deed of trust, lease, note, guaranty
or other contract or instrument, including, but not limited to, any
contract set forth on Schedule 4.17, to which FPC is a party or to
which its assets are subject, or by which it is otherwise bound, and
no such default or event exists or is alleged to exist with respect
to the performance of any obligation of any other party thereto.
Section 4.8 FINANCIAL STATEMENTS. CAM has been furnished
with audited financial statements of FPC from inception December 27,
1999 through April 30, 2000, (the "Financial Statements") as filed
with the U.S. Securities and Exchange Commission on Form 10SB. The
Financial Statements were prepared in accordance with generally
accepted accounting principles applied on a basis consistent with
prior periods and as of their date of issuance were or will be true,
correct and complete all material respects and present fairly and
accurately the information set forth therein.
Section 4.9 ABSENCE OF CERTAIN CHANGES. Except as set forth
on Schedule 4.9 hereto, since April 30, 2000, FPC has actively
conducted its business in the ordinary and regular course. Since
that date, there has not been any material adverse change in the
condition (financial or otherwise), results of operations, assets,
liabilities, properties, business or prospects of FPC nor is any
event threatened which would cause such an adverse change, nor has
there occurred any event or governmental regulation or order
restricting the business of FPC.
Section 4.10 FACILITIES AND EQUIPMENT. FPC does not own any
personal property owned or leased any facility for its operation.
Section 4.11 TITLE TO ASSETS. FPC does not own any tangible
property.
Section 4.12 ABSENCE OF UNDISCLOSED LIABILITIES. FPC does
not have any material liabilities or obligations, either accrued or
unaccrued, fixed or contingent, which have not been reflected in the
Financial Statements or set forth on Schedule 4.12 hereof, or which
exceed in the aggregate $5,000.
Section 4.13 LITIGATION. Schedule 4.13 hereof sets forth a
list of all administrative or judicial proceedings to which FPC is a
party. Except as set forth on Schedule 4.13, there is no action,
suit, claim, demand, arbitration or other proceeding, administrative
or judicial, pending or, to the best knowledge of FPC, threatened
against or relating to FPC which, if adversely determined or
resolved, would materially and adversely affect the financial
condition, results of operations, business or prospects of FPC.
Section 4.14 PATENTS AND TRADEMARKS.
(a) Except as set forth on Schedule 4.14(a), FPC does not
own, or operate under, any patent, trademark or service mark or any
applications therefor. All trade names (including those whose use
is limited to one or more states of the United States) owned or used
by FPC are listed on Schedule 4.14 hereof and, to the extent
indicated therein, have been duly registered with the states of the
United States or the corresponding offices of other countries.
Except as set forth on Schedule 4.14, FPC is the sole and exclusive
owner of, or has the sole and exclusive power with respect to, or
has the sole and exclusive right to use, the trade names specified
on Schedule 4.14.
(b) Except as set forth on Schedule 4.14(b) hereof, FPC has
not ever been charged with infringement or violation of any
adversely held trademark, trade name or copyright.
(c) Except as set forth on Schedules 4.14(a) and 4.14(b),
there are no claims or demands of any other person, firm or
corporation pertaining to the trade names, copyright registrations
or pending copyright registration applications, as the case may be,
listed on such schedules, and no proceedings have been instituted
which challenge the right of FPC in respect thereof.
Section 4.15 EMPLOYEE BENEFITS.
(a) Schedule 4.15 hereof contains a list of (i) each
pension, profit sharing, bonus, deferred compensation, or other
retirement plan or arrangement for the benefit of any employee or
group of employees of FPC or any independent contractors or group of
independent contractor of FPC, (ii) each medical, health,
disability, insurance or other plan or arrangement of FPC, and (iii)
each employee stock option plan or other plan providing for the
purchase of shares of capital stock of FPC. All of such plans and
arrangements of FPC are referred to herein as the "employee benefit
plans".
(b) The amounts reflected in the Financial Statements as
liabilities or contingent liabilities with respect to employee
benefit plans have been calculated in accordance and compliance with
applicable law, including accounting principles relating thereto.
(c) All of the employee benefit plans maintained by FPC (and
each funding medium which may be attendant thereto) are in
compliance with applicable law and all reporting and disclosure
requirements under applicable laws and regulations, and have been
administered and operated in accordance with their respective
provisions and applicable law. There are no actions, suits or
claims (other than routine claims for benefits) pending with respect
to the employee benefit plans.
(d) FPC has filed, published and disseminated all reports,
documents, statements and communications which are required to be
filed, published or disseminated under applicable law and the rules
and regulations promulgated thereunder relating to, and have timely
made all modifications and amendments to, the employee benefit plans.
Section 4.16 TAXES AND TAX RETURNS. FPC has duly filed all
income, franchise and other tax returns and reports required to be
filed by it and has duly paid or made provision for the payment of
all taxes (including any interest or penalties) which are due and
payable pursuant to such returns. FPC has withheld proper and
accurate amounts from their employees' compensation in substantial
compliance with all withholding and similar provisions of applicable
law. There are and will hereafter be no tax deficiencies (including
penalties and interest) of any kind assessed against FPC with respect
to any period ending on or before the Closing Date.
Section 4.17 CONTRACTS. FPC has heretofore furnished to CAM
or its counsel true and complete copies of each document, and a
written description of each oral contact, set forth on Schedule 4.17
hereof. Schedule 4.17 is a true and complete list of all contracts,
understandings, commitments, arrangements and agreements of the
following types, including all amendments thereto to which FPC is a
party:
(a) Contracts relating to equipment purchases, or series of
similar equipment purchases from the same supplier, involving an
expenditure of, or if in a series, expenditures in the aggregate of,
more than $25,000;
(b) Bonus, incentive, pension, profit-sharing,
hospitalization, insurance, deferred compensation, retirement, stock
option or stock purchase plans or similar plans providing employee
benefits;
(c) Factoring, loan, note, financing or similar contracts
with any lenders or guarantees of undertakings to answer for the
debts or defaults of another, or any contracts encumbering title to
any properties, involving in each case, or if in a series involving
the same lender, guarantor or property, as the case may be, in the
aggregate, at least $25,000;
(d) Contracts for the acquisition or disposition of a
business or substantially all of the property, assets or capital
stock or other securities of a business or company under which there
are continuing or unperformed obligations on the part of any of the
parties hereto, which contracts in each case involve at least $25,000;
(e) Conditional sales contracts, leases of personal
property or contracts for the purchase or sale of real or personal
property, involving in each case at least twenty-five thousand
dollars ($25,000);
(f) Management or consulting contracts, involving in each
case, or with respect to any individual in the aggregate, at least
twenty-five thousand dollars ($25,000);
(g) Contracts for the furnishing of services or products to
or by FPC, involving an expenditure in each case of at least
twenty-five thousand dollars ($25,000);
(h) Royalty or licensing contracts or contracts requiring
similar payments to unrelated parties individually, or with respect
to any unrelated party in the aggregate, involving or which
reasonably may in the future involve an amount in excess of
twenty-five thousand dollars ($25,000) annually;
(i) All employment agreements between FPC and any of its
employees; and
(j) All agreements, contracts and commitments not listed on
any other schedule hereto which individually involve the payment of
twenty-five thousand dollars ($25,000) or more.
Except as set forth on Schedule 4.17, all such contracts,
understandings, commitments, arrangements and agreements are in full
force and effect.
Section 4.18 COLLECTIVE BARGAINING AGREEMENTS Schedule 4.18
hereof is a list of all collective bargaining agreements with any
labor organization to which FPC is a party. The relations of FPC
with its employees are good and there are no impending labor
difficulties.
Section 4.19 INSURANCE. FPC has no insurance policy.
Section 4.20 REAL PROPERTY.
(a) FPC does not own nor lease any real property.
Section 4.20 MATERIAL MISSTATEMENTS OR OMISSIONS. No
representations or warranties made by FPC under this Agreement or in
any certificate, schedule or other document furnished or to be
furnished to CAM or its counsel pursuant hereto, or in connection
with the transactions contemplated by this Agreement, contains or
will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements
of fact contained therein not misleading.
5. COVENANTS AND TRANSACTIONS PRIOR TO CLOSING
Section 5.1 CONDUCT AND TRANSACTIONS OF CAM PRIOR TO THE
CLOSING. Between the date of this Agreement and the Closing, the
executive officers and board of directors of CAM shall retain full
control of the management and business thereof. In order to assure
protection and preservation of CAM's business as well as CAM's
performance of its obligations under and related to this Agreement,
CAM agrees that from the date of this Agreement up to and including
the Closing;
(a) CAM shall give FPC, its counsel, accountants,
appraisers and other representatives or experts retained by FPC full
access on reasonable notice to all the premises and books, records
and personnel of CAM during normal business hours and cause CAM to
furnish to FPC such financial and operating data and other
information with respect to the business and properties of CAM as
FPC may from time to time reasonably request. In the event of
termination of this Agreement for any reason, FPC will return all
documents, work papers and other materials obtained from CAM and
will not further disclose to third parties any confidential
information obtained by it pursuant hereto.
(b) CAM shall use all reasonable efforts to (i) preserve
intact the present business organization and personnel of CAM, (ii)
preserve the present goodwill and advantageous relationships of CAM
with all persons having business dealings with CAM, and (iii)
preserve and maintain in force all licenses, certificates, leases,
contracts, permits, registrations, franchises, confidential trade
names and copyrights, and applications for any of same, bonds and
other similar rights of CAM. Except as otherwise provided in this
Agreement, CAM shall refrain from entering into any new employment
or consulting agreements with any of its present officers,
management personnel or consultants, or any other employment or
consulting agreement with any other person, not terminable by CAM on
less than thirty (30) days' notice. CAM shall maintain in force all
property, casualty, crime, life, directors, officers and other forms
of insurance and bonds which it presently carries and, except with
the written consent of FPC, no cancellation or assignment of
existing insurance coverage will be effected by CAM.
(c) CAM shall operate its business only in the usual,
regular and ordinary course and manner, and, except with the written
consent of CAM, shall refrain from (i) selling or agreeing to sell
any capital stock, or (ii) except in the ordinary course of
business, encumbering or mortgaging any property or assets or
terminating or modifying any lease or incurring any obligation
(contingent or otherwise).
(d) CAM shall not discuss or negotiate with any third party
a possible sale of all or any part of the capital shares or assets
of CAM, nor provide any information to any third party with respect
thereto, other than such Information which is provided in the
ordinary course of the business operation of CAM to third parties,
provided CAM has no reason to believe that such information may be
utilized to evaluate a possible sale of the capital
shares or assets of CAM.
(e) CAM will exert its best efforts to fulfill in a timely
manner all objectives and conditions to permit consummation of the
transactions as contemplated by this Agreement and execute and
deliver to FPC any and all documents necessary, in the reasonable
opinion of its counsel, to consummate the transactions contemplated
by this Agreement.
Section 5.2 CONDUCT BY FPC PRIOR TO CLOSING. Between the
date of this Agreement and the Closing Date, FPC shall use its best
efforts to fulfill in a timely manner all objectives and conditions
to permit consummation of the transactions as contemplated by this
Agreement and execute and deliver to CAM any and all documents
necessary, in the reasonable opinion of its counsel, to consummate
the transactions contemplated by this Agreement.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF FPC
The obligations of FPC under this Agreement are, at its
option, subject to satisfaction of the following conditions at or
prior to the Closing:
Section 6.1 REPRESENTATIONS OF CAM. The representations and
warranties of CAM set forth in this Agreement shall be true and
complete in all material respects on and as of the Closing to the
same extent and with the same force and effect as if made on such
date, except as expressly provided to the contrary in this Agreement.
Section 6.2 CONSENTS. All necessary approvals or consents
shall have been obtained from any and all federal departments and
agencies and from all other commissions, boards, agencies and from
any other person, firm or entity whose approval or consent is
necessary to the consummation of the transactions contemplated by
this Agreement.
Section 6.3 PERFORMANCE BY CAM. CAM shall have duly
performed all obligations, covenants and agreements undertaken by
them herein and complied with all terms and conditions applicable to
them hereunder to be performed and complied with prior to the Closing.
Section 6.4 DOCUMENTS TO BE DELIVERED TO FPC. FPC shall
have received:
(a) A certificate, dated as of the Closing and executed by
CAM certifying as to the fulfillment of the matters contained in
Sections 6.1, 6.2 and 6.3;
(b) True and complete copy of the certificates of
incorporation of CAM, certified by the Secretary of State of Florida
or similar office of competent jurisdiction, and of the by-laws of
CAM, together with all amendments thereto, certified by the
Secretary of CAM;
(c) Good standing certificate for CAM, certified by the
Secretary of State of Florida;
(d) Certificates representing 1000 of the CAM Shares, duly
endorsed for transfer, and CAM shall have received the 4,700,000 FPC
Shares, duly endorsed for transfer. All such shares shall be subject
to Rule 144 legend.
Section 6.5 SUITS. No suit, action or other proceeding
shall be threatened or pending before any court or governmental
agency in which it will be or it is sought to restrain or prohibit
or to obtain damages or other relief in connection with this
Agreement or the consummation of the transactions contemplated by
this Agreement or which is likely to materially and adversely affect
the financial condition, results of operations, business or
prospects of CAM.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF CAM
The obligations of CAM under this Agreement are, at its
option, subject to satisfaction of the following conditions at or
prior to the initial Closing:
Section 7.1 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of FPC set forth in this Agreement
shall be true and complete in all material respects on and as of the
Closing to the same extent and with the same force and effect as if
made on such date, except as affected by the transactions
contemplated by this Agreement.
Section 7.2 CONSENTS. All necessary approvals or consents
shall have been obtained from any and all federal departments and
agencies and from all other commissions, boards, agencies and from
any other person, firm or entity whose approval or consent is
necessary to the consummation of the transactions contemplated by
this Agreement.
Section 7.3 PERFORMANCE BY FPC. FPC shall have duly
performed all obligations, covenants and agreements undertaken by it
herein and complied with all the terms and conditions applicable to
them hereunder to be performed or complied with prior to the Closing.
Section 7.4 DOCUMENTS TO BE DELIVERED TO CAM. CAM shall
have received:
(a) Certificate dated as of the Closing, and executed by an
officer of FPC, certifying as to the fulfillment of the matters
contained in Sections 7.1, 7.2 and 7.3;
(b) Certificates representing 4,700,000 FPC Shares, duly
endorsed for transfer, and FPC shall have received 1000 CAM Shares,
duly endorsed for transfer.
(c) True and complete copies of the certificate of
incorporation of FPC and of the by-laws of FPC, together with all
amendments thereto, certified by the Secretary of FPC;
(d) True and correct copies of Minutes of the Board of
Directors authorizing the officers and the Company to consummate the
transaction.
Section 7.5 SUITS. No suit, action or other proceeding
shall be threatened or pending before any court or governmental
agency in which it will be or it is sought to restrain or prohibit
or to obtain damages or other relief in connection with this
Agreement or the consummation of the transactions contemplated by
this Agreement.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION
Section 8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
Notwithstanding the closing of the transactions contemplated by this
Agreement, or any investigation made by or on behalf of CAM or FPC,
the representations and warranties of CAM or FPC contained in this
Agreement or in any certificate, schedule, chart, list, letter,
compilation or other document delivered pursuant hereto, shall
survive the Closing for a period of one (1) year; provided, however,
that as to any breach of, or misstatement in, any such
representation or warranty as to which one party has given notice to
the other on or prior to the expiration of such one (1) year period,
the same shall continue to survive beyond said period, but only as
to the matters contained in such notice.
Section 8.2 CAM'S INDEMNIFICATION. CAM covenants and agrees
to indemnify and save harmless FPC and its directors, officers,
employees and agents from any and all costs, expenses, losses,
damages and liabilities incurred or suffered directly or directly by
any of them (including reasonable legal fees and costs) proximately
resulting from or attributable to the breach of, or misstatement in,
any one or more of the representations or warranties of CAM made in
or pursuant to this Agreement.
Section 8.3 FPC'S INDEMNIFICATION. FPC covenants and agrees
to indemnify and save harmless CAM and its directors, officers,
employees and agents from any and all costs, expenses, losses,
damages and liabilities incurred or suffered by any of them
(including reasonable legal fees and costs) proximately resulting
from or attributable to the breach of, or misstatement in, any one
or more of the representations or warranties of FPC made in or
pursuant to this Agreement.
Section 8.4 DEFENSE AGAINST ASSERTED CLAIMS. If any claim
or assertion of liability is made or asserted by a third party
against a party indemnified pursuant to this Article 8 ("Indemnified
Party") based on any liability or absence of right which, if
established, would constitute a matter for which the Indemnified
Party would be entitled to indemnification by another party hereto
("the Indemnifying Party") the Indemnified Party shall with
reasonable promptness give to the Indemnifying Party written notice
of the claim or asserting of liability and request the Indemnifying
Party to defend the same. Failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any liability
which the Indemnifying Party might have to the Indemnified Party
unless such failure materially prejudices the Indemnifying Party's
position. The Indemnifying Party shall have the right to defend
against such liability or assertion, in which event the Indemnifying
Party shall give written notice to the Indemnified Party of the
acceptance of defense of such claim and the identity of counsel
selected by the Indemnifying Party with respect to such matters.
The Indemnified Party shall be entitled to participate with the
Indemnifying Party in such defense and also shall be entitled at its
option to employ separate counsel for such defense at the expense of
the Indemnified Party. In the event the Indemnifying Party does not
accept the defense of the matter as provided above or in the event
that the Indemnifying Party or its counsel fails to use reasonable
care in maintaining such defense, the Indemnified Party shall have
the full right at its option to defend against the liability or
assertion and to employ counsel for such defense at the expense of
the Indemnifying Party. All parties hereto will cooperate with each
other in the defense of any such action and the relevant records of
each shall be available to the others with respect to such defense.
9. POST-CLOSING MATTERS
Section 9.1 PERFORMANCE BONDS. CAM shall maintain in force
at its expense, until their maturity or expiration in accordance
with their terms, all performance bonds issued by CAM prior to the
Closing Date.
10. ASSIGNMENT, THIRD PARTIES, BINDING EFFECT
The rights under this Agreement shall not be assignable nor
the duties delegable by any party without the written consent of all
parties hereto having been obtained thereto. Nothing contained in
this Agreement, express or implied, is intended to confer upon any
person or entity, other than the parties hereto, and their
successors in interest, any rights or remedies under or by reason of
this Agreement unless so stated expressly to the Contrary. All
covenants, agreements, representations and warranties of the parties
contained herein shall be binding upon and inure to the benefit of
FPC and CAM and their respective successors and permitted assigns.
11. ABANDONMENT
In the event the transactions contemplated hereby are
terminated or abandoned by mutual agreement of the parties hereto,
there shall be no liability on the part of any of the parties by
reason of such termination or abandonment.
12. NOTICES
All notices, requests, demands and other communications
hereunder shall be in writing and shall, be deemed to have been duly
given when personally delivered or deposited in the United States
mail, certified or registered, return receipt requested, postage
prepaid, addressed to the parties at the following addresses (or at
such other address as shall be given in writing by any party to the
other) as follows:
To FPC: Michael Tay
First Philadelphia Capital Corp.
1422 Chestnut St., Suite 410
Philadelphia, PA 19102-2510
Telephone: (215) 569-9175
Facsimile: (215) 569-4710
To CAM: Soloman Lam
Conservation Anglers Manufacturing, Inc.
11863 Wimbledon Circle, #418
Wellington, FL 33414
Telephone: (561) 389-6725
Facsimile: (561) 333-9590
13. REMEDIES NOT EXCLUSIVE
No remedy conferred by any of the provisions of this
Agreement is intended to be exclusive of any other remedy, and each
and every remedy shall be cumulative and shall be in addition to
every remedy given hereunder or now or hereafter existing, at law or
in equity by statute or otherwise. The election of any one or more
remedies by FPC or CAM shall not constitute a waiver of the right to
pursue other available remedies.
14. COUNTERPARTS
This Agreement may be executed in one or more counterparts
each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
15. CAPTIONS AND SECTION HEADINGS
Captions and section headings used herein are for convenience
only and are not a part of this Agreement and shall not be used in
construing it.
16. WAIVERS
Any failure by any of the parties hereto to comply with all
of the obligations, agreements or conditions set forth herein may be
waived by the other party or parties, provided, however that any
such waiver shall not be deemed a waiver of any other obligation,
agreement or condition contained herein.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
parties. There are not and shall not be any verbal statements,
representations, warranties, undertakings or agreements between the
parties, and this Agreement may not be amended or modified in any
respect except by a written instrument signed by the parties hereto.
18. APPLICABLE LAW
This Agreement shall be governed and construed in accordance
with the laws of the State of Pennsylvania.
* * *
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
First Philadelphia Capital Corp.
By: /s/ Michael Tay
----------------------
Michael Tay, President
Conservation Anglers Manufacturing, Inc.
By: /s/ Soloman Lam
----------------------
Soloman Lam, President
