EXHIBIT 10.2
AGREEMENT OF REORGANIZATION
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REORGANIZATION AGREEMENT
This Reorganization Agreement (this "Agreement"), entered into this
15th day of December, 1998, by and between Saker One Corporation, a corporation
organized under the laws of the State of Utah (hereinafter the "Parent"), Triad
Compressor, Inc., a corporation organized under the laws of the State of Nevada
(the "Subsidiary") and a wholly-owned subsidiary of Parent, Robert Kropf
("Kropf") and Triad Compressor, Inc., a Texas corporation (hereinafter the
"Company").
WITNESSETH:
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WHEREAS, Parent, Subsidiary and the Company desire to enter into a plan
of reorganization wherein the Company merges with the Subsidiary in exchange for
common stock of the Parent;
NOW, THEREFORE, in consideration of the mutual terms and covenants set
forth herein, Parent, the Subsidiary and the Company approve and adopt this
Reorganization Agreement and mutually covenant and agree with each other as
follows:
ARTICLE I
MERGER
1.01 Merger At Closing ("Closing" or the "Effective Date") the Company shall
merge (the "Merger") into the Subsidiary pursuant to a Plan of Merger in the
form of Exhibit A hereto. The Subsidiary shall be the surviving corporation and
shall survive the Merger herein contemplated and shall be governed by the laws
of Utah, and the separate corporate existence of the Company shall cease on the
Effective Date. As a result of the Merger, the shareholders of the Company (the
"Shareholders") shall be entitled to receive shares of the Parent, (the "Merger
Shares") which issuance shall total in the aggregate 11,549,105 shares and
comprise 83.8% of the issued and outstanding capital stock of Parent after
giving effect to the Merger.
1.02 TAX-FREE REORGANIZATION. The parties intend that this transaction
constitute a "tax free" reorganization pursuant to Section 368(a)(1) of the
Internal Revenue Code of the United States.
1.03 TRANSFER SHARES. Certain shareholders of Parent (the "Transferring
Shareholders") shall execute and deliver a Stock Transfer Agreement in form and
substance satisfactory to the Company (the "Stock Transfer Agreement") pursuant
to which Transferring Shareholders shall at closing transfer to the Shareholders
an aggregate of 1,543,527 shares of common stock, par value $.01 per share, of
Parent (the "Transfer Shares") comprising 11.2% of the issued and outstanding
capital stock of Parent after giving effect to the Merger.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.01 ORGANIZATION AND AUTHORITY.
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(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Texas, with all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as now being conducted, is duly qualified and in good
standing in every jurisdiction in which the property owned, leased or operated
by it, or the nature of the business conducted by it, makes such qualification
necessary to avoid material liability or material interference in its business
operations, and is not subject to any agreement, commitment or understanding
which restricts or may restrict the conduct of its business in any jurisdiction
or location. The Company is presently qualified to do business in the State of
Texas.
(b) The outstanding shares of the Company are legally and validly
issued, fully paid and non-assessable.
(c) The Company does not own five percent (5%) or more of the
outstanding stock of any corporation other than Fuge Systems, Inc.
(d) The minute book of the Company will be made available to Parent
prior to the Effective Date and will contain complete and accurate records of
all meetings and other corporate actions of the shareholders and the Board of
Directors (and any committee thereof) of the Company.
(e) The Disclosure Statement will be amended as of the Effective Date
to contain a list of the officers, directors and shareholders of the Company and
copies of the articles of incorporation and by-laws currently in effect of the
Company.
(f) The execution and delivery of this Agreement does not, and the
consummation of the transaction contemplated hereby will not, subject to the
approval and adoption by the Shareholders of the Company, violate any provision
of the articles of incorporation or bylaws of the Company, or any provisions
thereof or result in the acceleration of any obligation under, any mortgage,
lien, lease, agreement, instrument, court order, arbitration award, judgment or
decree to which the Company is a party, or by which it is bound, and will not
violate any other restriction of any kind or character to which it is subject.
(g) The authorized capital stock of the Company will be 15,000,000
shares of common stock, .01 par value as of the Effective Date, of which
13,788,297 shares of such stock will be issued and outstanding at the time of
Closing.
2.02 FINANCIALS.
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(a) Financial statements (hereafter "financial statements") of the
Company for the years 1996 and 1997, will be delivered by the Company to the
Parent prior to the Effective Date. Said financial statements are true and
correct in all material respects and present an accurate and complete disclosure
of the financial condition of the Company as of its date and for the periods
covered.
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(b) All accounts receivable, if any, (net of reserves for doubtful
accounts) of the Company shown on the books of account on the statement date and
as incurred in the normal course of business since that date, are collectible in
the normal course of business.
(c) The Company has good and marketable title to all of its assets,
business and properties including, without limitation, all such properties
reflected in the balance sheet as of the statement date except as disposed of in
the normal course of business, free and clear of any mortgage, lien, pledge,
charge, claim or encumbrance, except as shown on said balance sheet as of the
statement date and, in the case of real properties except for rights-of-way and
easements which do not adversely affect the use of such property.
(d) All currently used property and assets of the Company, or in which
it has an interest, or which it has in possession, are in good operating
condition and repair subject only to ordinary wear and tear.
2.03 CHANGES SINCE THE STATEMENT DATE. Since the financial statement date,
except as disclosed in the Disclosure Statement, there will not have been any
material negative change in the financial position or assets of the Company.
2.04 LIABILITIES. To the best of the knowledge of management, there are no
material liabilities of the Company, whether accrued, absolute, contingent or
otherwise, which arose or relate to any transaction of the Company, its agents
or servants occurring prior to the statement date, which are not disclosed by or
reflected in said financial statements, except as disclosed in the Disclosure
Statement. There are no such liabilities of the Company which have arisen or
relate to any transaction of the Company, its agents or servants, occurring
since the statement date, other than normal liabilities incurred in the normal
conduct of the business of the Company, and none of which have a material
adverse effect on the business or financial condition of the Company, except as
disclosed in the Disclosure Statement. As of the date hereof, there are no known
circumstances, conditions, happenings, events or arrangements, contractual or
otherwise, which may hereafter give rise to liabilities, except in the normal
course of business of the Company, except as disclosed in the Disclosure
Statement.
2.05 TAXES. All federal, foreign, county and local income, ad valorem, excise,
profits, franchise, occupation, property, sales, use gross receipts and other
taxes (including any interest or penalties relating thereto) and assessments
which are due and payable have been duly reported, fully paid and discharged as
reported by the Company, and there are no unpaid taxes which are, or could
become a lien on the properties and assets of the Company, except as provided
for in the financial statements of their date, or have been incurred in the
normal course of business of the Company since that date. All tax returns of any
kind required to be filed have been filed and the taxes paid or accrued.
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2.06 ACCURACY OF ALL STATEMENTS MADE BY COMPANY. No representation or warranty
by the Company in this Agreement, nor any statement, certificate, schedule or
exhibit hereto furnished or to be furnished pursuant to this Agreement, nor any
document or certificate delivered to Parent pursuant to this Agreement or in
connection with actions contemplated hereby, contains or shall contain any
untrue statement of material fact or omits or shall omit a material fact
necessary to make the statement contained therein not misleading.
2.07 LIMITATION OF SUBSEQUENT CORPORATE ACTIONS. It is expressly understood and
agreed that the Parent, and its affiliates, will take all steps necessary to
insure that for a period of eighteen months there shall be no reverse split and
the assets transferred in shall remain in place as part of the business
operations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent and Kropf jointly and severally represent and warrant as
follows:
3.01 ORGANIZATION AND AUTHORITY.
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(a) The Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Utah, with full power and authority
to enter into and perform the transactions contemplated by this Agreement, and
with all requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted, is duly
qualified and in good standing in every jurisdiction in which the property
owned, leased or operated by it, or the nature of the business conducted by it,
makes such qualification necessary to avoid material liability or material
interference in its business operations, and is not subject to any agreement,
commitment or understanding which restricts or may restrict the conduct of its
business in any jurisdiction or location. The Parent is presently qualified to
do business in Utah.
(b) The Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada, with full power and
authority to enter into and perform the transactions contemplated by this
Agreement, and with all requisite corporate power and authority to own, operate
and lease its properties and to carry on its business as now being conducted, is
duly qualified and in good standing in every jurisdiction in which the property
owned, leased or operated by it, or the nature of the business conducted by it,
makes such qualification necessary to avoid material liability or material
interference in its business operations, and is not subject to any agreement,
commitment or understanding which restricts or may restrict the conduct of its
business in any jurisdiction or location. The Subsidiary is presently qualified
to do business in Nevada.
(c) Each of the Parent and the Subsidiary has the corporate power and
corporate authority to enter into and perform this Agreement and the Plan of
Merger. This Agreement and the Plan of Merger have been duly authorized by all
necessary corporate action on the part of the Parent and the Subsidiary and have
be&n duly executed and delivered by the Parent and the Subsidiary.
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(d) The Parent does not own five percent (5%) or more of the
outstanding stock of any corporation other than the Subsidiary.
(e) The minute books of the Parent and the Subsidiary made available to
the Company and Shareholders contains complete and accurate records of all
meetings and other corporate actions of the shareholders and the Board of
Directors (and any committee thereof) of the Parent and the Subsidiary.
(f) The Disclosure Statement contains a list of the officers, directors
and shareholders of the Parent and the Subsidiary and copies of the articles of
incorporation and by- laws currently in effect of the Parent and the Subsidiary.
(g) The execution and delivery of this Agreement and the Plan of Merger
and the performance by the Parent and the Subsidiary of their respective terms
do not and will not conflict with or result in a violation of (a) the Articles
of Incorporation or bylaws of the Parent or the Subsidiary; (b) any order, writ,
judgment or decree to which the Parent or the Subsidiary is subject (c) any
agreement under which the Parent or the Subsidiary has borrowed money or any
other agreement to which the Parent or the Subsidiary is a party or (d) any law,
rule, regulation or ordinance applicable to the Parent or the Subsidiary.
(h) The Parent's authorized capital stock consists of 2,000,000 shares
of preferred stock, none of which are issued and outstanding and 15,000,000
shares of common stock, $01 par value, of which 9,979,000 shares were issued and
outstanding immediately prior to the Effective Date and 13,788,297 shares are
currently issued and outstanding after giving effect to the Merger. The
outstanding shares (including the Merger Shares) have been duly authorized and
validly issued and are fully paid and nonassessable. There are no outstanding or
authorized subscriptions, options, warrants, calls, rights (including any
preemptive rights), commitments or other agreements of any character whatsoever
which obligate or may obligate the Parent to issue or sell any additional shares
of its capital stock or any securities convertible into or evidencing the right
to subscribe for any shares of its capital stock or securities convertible into
or exchangeable for such shares. There are not outstanding contractual
obligations of the Parent to repurchase, redeem or otherwise acquire any
outstanding shares of capital stock of or other ownership interest in, the
Parent or to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any other entity. There are no outstanding
agreements or obligations of any character obligating the Parent to register any
shares of its capital stock under the Securities Act of 1933, as amended. At the
Closing after giving effect to the Merger, the Shareholders shall collectively
hold 95% of the issued and outstanding capital stock of Parent.
(i) The Parent is the owner of all of the outstanding shares of capital
stock of the Subsidiary. The Subsidiary's authorized capital stock consists of
1000 shares of common stock, par value $01 per share, of which 1000 shares are
currently issued and outstanding. The outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. There are no
outstanding or authorized subscriptions, options, warrants, calls, rights
(including any preemptive rights), commitments or other agreements of any
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character whatsoever which obligate or may obligate the Subsidiary to issue or
sell any additional shares of its capital stock or any securities convertible
into or evidencing the right to subscribe for any shares of its capital stock or
securities convertible into or exchangeable for such shares. There are no
outstanding contractual obligations of the Company or the Subsidiary to
repurchase, redeem or otherwise acquire any outstanding shares of capital stock
of, or other ownership interest in, the Subsidiary or to provide funds to or
make any investment (in the form of a loan, capital contribution or otherwise)
in any other entity.
(j) Parent represents that at the time of the Closing neither Parent
nor the Subsidiary will have any assets or liabilities other than that which is
reflected in its audited financial statements.
(k) Parent represents that at the time of the Closing it has taken all
necessary steps to comply with all applicable state and federal securities laws
and regulations and that, to the knowledge of the Parent, at the time of
closing, there is no litigation, arbitration, governmental or other proceeding
(formal or informal), claim or investigation pending or threatened, with respect
to the Parent's compliance with any and all applicable securities laws and
regulations.
3.02 PERFORMANCE OF THIS AGREEMENT. The execution and performance of this
Agreement and the issuance of the Merger Shares contemplated hereby, has been
duly authorized by the board of directors of Parent and the Subsidiary and this
Agreement constitutes a valid and binding obligation of Parent and the
subsidiary enforceable in accordance with its terms.
3.03 FINANCIALS.
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(a) True copies of the financial statements of the Parent as of
December 31, 1997 have been completed and delivered by the Parent to the
Company. These statements have been examined and certified by certified public
accountants. Said financial statements are true and correct in all material
respects and present an accurate and complete disclosure of the financial
condition and earnings of the Parent for the periods covered, in accordance with
generally accepted accounting principles applied on a consistent basis.
(b) All accounts receivable, if any, (net of reserves for doubtful
accounts) of the Parent shown on financial statement, and as incurred in the
normal course of business since that date, are collectible in the normal course
of business.
(c) The Parent has good and marketable title to all of its assets,
business and properties including, without limitation, all such properties
reflected in the aforementioned balance sheet, except as disposed of in the
normal course of business, free and clear of any mortgage, lien, pledge, charge,
claim or encumbrance, except as shown on said balance sheet, and, in the case of
real properties, except for rights-of-way and easements which do not adversely
affect the use of such property.
3.04 CHANGES SINCE AUDIT DATE. Since the date of the financial statements,
except as disclosed on the Disclosure Schedule, there has not been any material
change in the financial position or assets of the Parent.
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3.05 ACCURACY OF ALL STATEMENTS MADE BY PARENT. No representation or warranty by
the Parent in this Agreement, nor any statement, certificate, schedule or
exhibit hereto furnished or to be furnished by the Parent pursuant to this
Agreement, nor any document or certificate delivered to the Company or the
Shareholders pursuant to this Agreement or in connection with actions
contemplated hereby, contains or shall contain any untrue statement of material
fact or omits or shall omit a material fact necessary to make the statement
contained therein not misleading.
3.06 LEGALITY OF SHARES TO BE ISSUED. The Merger Shares to be issued by Parent
pursuant to this Agreement, when so issued, will have been duly and validly
authorized and issued by Parent and will be fully paid and non-assessable. At
the Closing, the Shareholders will acquire good and marketable title to the
Merger Shares and the Transfer Shares, free and clear of any and all
encumbrances.
3.07 NO COVENANT AS TO TAX CONSEQUENCES. It is expressly understood and agreed
that neither Parent nor its officers or agents has made any warranty or
agreement, expressed or implied, as to the tax consequences of the transactions
contemplated by this Agreement or the tax consequences of any action pursuant to
or growing out of this Agreement.
ARTICLE IV
COVENANTS OF THE COMPANY
4.01 ACCESS TO INFORMATION. Parent and its authorized representatives shall have
full access during normal business hours to all properties, books, records,
contracts and documents of the Company, and the Company shall furnish or cause
to be furnished to Parent and its authorized representative all information with
respect to its affairs and business of the Company as Parent may reasonably
request.
4.02 ACTIONS PRIOR TO CLOSING. From and after the date of this Agreement and
until the Closing Date, the Company shall not materially alter its business.
ARTICLE V
CONDITIONS PRECEDENT TO PARENT'S OBLIGATIONS
Each and every obligation of Parent to be performed on the Closing Date
shall be subject to the satisfaction of the Parent of the following conditions:
5.01 TRUTH OF REPRESENTATIONS AND WARRANTIES, The representations and warranties
made by the Company in this Agreement or given on its behalf hereunder shall be
substantially accurate in all material respects on and as of the Closing Date
with the same effect as though such representations and warranties had been made
or given on and as of the Closing Date.
5.02 COMPLIANCE WITH COVENANTS. The Company shall have performed and complied
with all obligations under this Agreement which are to be performed or complied
with by the Company prior to or on the Closing Date, including the delivery of
the closing documents specified hereafter.
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5.03 ABSENCE OF SUIT. No action, suit or proceedings before any court or any
governmental or regulatory authority shall have been commenced or threatened
and, no investigation by any governmental or regulatory authority shall have
been commenced, against the Shareholders, the Company or any of the affiliates,
associates, officers or directors of any of them, seeking to restrain, prevent
or change the transactions contemplated hereby, or questioning the validity or
legality of any such transactions, or seeking damages in connection with any of
such transactions.
5.04 RECEIPT OF APPROVALS. ETC. All approvals, consents and/or waivers that are
necessary to effect the transactions contemplated hereby shall have been
received.
5.05 NO MATERIAL ADVERSE CHANGE. As of the Closing Date there shall not have
occurred any material adverse change which materially impairs the ability of the
Company to conduct its business on the same basis as in the past.
5.06 ACCURACY OF FINANCIAL STATEMENT. Parent and its representatives shall be
satisfied as to the accuracy of all balance sheets, statements of income and
other financial statements of the Company furnished to Parent herewith.
5.07 PROCEEDINGS AND INSTRUMENTS SATISFACTORY: CERTIFICATES. All proceedings,
corporate or otherwise, to be taken in connection with the transactions
contemplated by this Agreement shall have occurred and all appropriate documents
incident thereto as Parent may request shall have been delivered to Parent. The
Company and the Shareholders shall have delivered certificates in such detail as
Parent may request as to compliance with the conditions set forth in this
Article 5.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE COMPANY
Each and every obligation of the Company to be performed on the Closing
Date shall be subject to the satisfaction prior thereto of the following
conditions:
6.01 TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Parent contained in this Agreement shall be true at and as of the Closing
Date as though such representations and warranties were made at and as of the
transfer date.
6.02 PARENT'S COMPLIANCE WITH COVENANTS. Parent shall have performed and
complied with its obligations under this Agreement which are to be performed or
complied with by it prior to or on the Closing Date.
6.03 ABSENCE OF SUIT. No action, suit or proceedings before any court or any
governmental or regulatory authority shall have been commenced or threatened
and, no investigation by any governmental or regulatory authority shall have
been commenced against Parent, or any of the affiliates, associates, officers or
directors of the Parent seeking to restrain, prevent or change the transactions
contemplated hereby, or questioning the validity or legality of any such
transactions, or seeking damages in connection with any of such transactions.
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6.04 RECEIPT OF APPROVALS. ETC. All approvals, consents and/or waivers that are
necessary to effect the transactions contemplated hereby shall have been
received.
6.05 NO MATERIAL ADVERSE CHANGE. As of the closing date there shall not have
occurred any material adverse change which materially impairs the ability of the
Parent to conduct its business or the earning power thereof on the same basis as
in the past.
6.06 ACCURACY OF FINANCIAL STATEMENTS. The Company shall be satisfied as to the
accuracy of all balance sheets, statements of income and other financial
statements of the Parent furnished to the Company herewith.
6.07 PROCEEDINGS AND INSTRUMENTS SATISFACTORY: CERTIFICATES. All proceedings,
corporate or otherwise, to be taken in connection with the transactions
contemplated by this Agreement shall have occurred and all appropriate documents
incident thereto as the Company may request shall have been delivered to the
Company. The Parent shall have delivered certificates in such detail as the
Shareholders may request as to compliance with the conditions set forth in this
Article 6.
6.08 DISSENTER RIGHTS. None of the Shareholders shall have exercised dissenters
rights with respect to the Merger and all Shareholders shall have executed a
written consent approving the Merger.
6.09 STOCK TRANSFER AGREEMENT. Certain shareholders of Parent shall have entered
into a Stock Transfer Agreement in form and substance satisfactory to the
Company pursuant to which such shareholders shall transfer to each Shareholder
of the Company the number of freely tradeable shares of the common stock of
Parent.
6.10 OPINION OF PARENT'S COUNSEL. The Company and the Shareholders shall have
received an opinion of counsel to Parent.
ARTICLE VII
INDEMNIFICATION
The Company shall indemnify Parent for any loss, cost, expense or other
damage suffered by Parent resulting from, arising out of or incurred with
respect to the falsity or the breach of any representation, warranty or covenant
made by the Company herein. Parent and Kropf shall jointly and severally
indemnify and hold the Company and the Shareholders harmless from and against
any loss, cost, expense or other damage (including, without limitation,
attorneys' fees and expenses) resulting from, arising out of, or incurred with
respect to, or alleged to result from, arise out of or have been incurred with
respect to, the falsity or the breach of any representation, covenant, warranty
or agreement made by Parent or Kropf herein.
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ARTICLE VIII
SECURITY ACT PROVISIONS
8.01 RESTRICTIONS ON DISPOSITION OF SHARES. Shareholders of the Company must
covenant and warrant that the Merger Shares received are acquired for their own
accounts and not with the present view towards the distribution thereof and will
not dispose of such Merger Shares except (i) pursuant to an effective
registration statement under the Securities Act of 1933, as amended, or (ii) in
any other transaction which, in the opinion of counsel, acceptable to Parent, is
exempt from registration under the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder. In
order to effectuate the covenants of this sub-section, an appropriate
endorsement will be placed upon each of the certificates evidencing the Merger
Shares at the time of distribution of such Merger Shares pursuant to this
Agreement, and stop transfer instructions shall be placed with the transfer
agent for the securities.
8.02 NOTICE OF LIMITATION UPON DISPOSITION. Each Shareholder is aware that the
Merger Shares distributed pursuant to this Agreement will not have been
registered pursuant to the Securities Act of 1933, as amended; and, therefore,
under current interpretations and applicable rules, the Shareholder will
probably have to retain such Merger Shares for a period of at least one year and
at the expiration of such one year period sales may be confined to brokerage
transactions of limited amounts requiring certain notification filings with the
Securities and Exchange Commission and such disposition may be available only if
the Parent is current in its filings with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, or other public disclosure
requirements, and the other limitations imposed thereby on the disposition of
the Merger Shares of the Parent. Additionally, "affiliates" owning shares will
be subject to additional restrictions limiting sales. Parent represents that the
Transfer Shares to be transferred to the Shareholders pursuant to the Stock
Transfer Agreement shall be freely tradeable by the Shareholders.
8.03 LIMITED PUBLIC MARKET FOR COMMON SHARES. Each Shareholder acknowledges that
the Merger Shares being issued pursuant to this Agreement currently have a
limited public market in which the shares may be liquidated and there is no
assurance that such pubic market will grow or develop.
ARTICLE IX
CLOSING
9.01 TIME. The Effective Date of closing of this transaction (the "Closing")
shall be the one which Articles of Merger are filed with the Secretary of State
of Texas and Nevada but not later than December 31, 1998 unless extended by
Parent and the Company. Such date is referred to in this Agreement as the
"Closing Date."
9.02 DOCUMENTS TO BE DELIVERED BY SHAREHOLDERS. At the Closing, Shareholders
shall deliver to Parent the following documents:
(a) Certificates or assignments for all shares of stock of the Company
in the manner and form required by the Plan of Merger.
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(b) A certificate signed by the President or other executive officer or
director of the Company that the representations and warranties made by the
Company in this Agreement are true and correct on and as of the Closing Date
with the same effect as though such representations and warranties had been made
on or given on and as of the Closing Date and that Shareholders have performed
and complied with all of their obligations under this Agreement which are to be
performed or complied with by or prior to or on the Closing Date.
(c) A copy of the by-laws of the Company certified by its secretary or
assistant secretary and a copy of the certificate of incorporation of the
Company.
(d) Certificates or letters from Shareholders evidencing the taking of
the shares in accordance with the provisions of this Agreement and their
understanding of the restrictions thereunder.
(e) Such other documents of transfer, certificates of authority and
other documents as Parent may reasonably request.
(f) A certified copy of the duly adopted resolutions of the board of
directors of the Company authorizing or ratifying the execution and performance
of this Agreement and authorizing or ratifying the acts of its officers and
employees in carrying out the terms and provisions thereof
9.03 DOCUMENTS TO BE DELIVERED BY PARENT. At the Closing, Parent shall deliver
to Shareholders the following documents:
(a) Certificates issued to each Shareholder for the number of shares of
Merger Shares issuable to such Shareholder as determined pursuant to Article I
hereof and the Plan of Merger
(b) A certified copy of the duly adopted resolutions of the board of
directors of Parent authorizing or ratifying the execution and performance of
this Agreement and authorizing or ratifying the acts of its officers and
employees in carrying out the terms and provisions thereof
(c) A certificate signed by the President of the Parent that the
representations and warranties made by the Parent in this Agreement are true and
correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on or given on and as of the
Closing Date and that the Parent has performed and complied with all of their
obligations under this Agreement which are to be performed or complied with by
or prior to or on the Closing Date.
(d) The Stock Transfer Agreement executed and delivered by the parties
thereto.
(e) A certificate issued to each Shareholder for the number of
Transfer Shares to be transferred to such Shareholder pursuant to the Stock
Transfer Agreement.
(f)The legal opinion of counsel to Parent required pursuant to Section
6.10 hereof.
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ARTICLE X
TERMINATION AND ABANDONMENT
This Agreement may be terminated and the transaction provided for by
this Agreement may be abandoned without liability on the part of any part to any
other, at any time before the Closing Date, or on a post closing basis as
provided previously herein:
(a) By mutual consent of Parent and the Company;
(b) By Parent if any of the conditions provided for in Article VI of
this Agreement have not been met and have not been waived in writing by Parent.
(c) By the Company if any of the conditions provided for in Article
VII of this Agreement have not been met and have not been waived in writing by
the Company.
In the event of termination and abandonment by any party as above
provided in this Article, written notice shall forthwith be given to the other
party, and each party shall pay its own expenses incident to preparation for the
consummation of this Agreement and the transactions contemplated hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 NOTICES. All notices, requests, demands and other communications hereunder
shall be deemed to have been duly given, if delivered by hand or mailed,
certified or registered mail with postage prepaid:
(a) If to the Company, to James B. LaPorte at 120 South Denton Tap
Road, # 450 C 113, Copppell, Texas 75019, or to such other person and place as
the Company shall furnish to Parent in writing; or
(b) If to Parent, the Subsidiary or Kropf, to Nathan W. Drage at 4505
South Wasatch Blvd., Suite 330, Salt Lake City, Utah 84124, or to such other
person and place as Parent shall furnish to Company in writing.
11.02 ANNOUNCEMENTS. Announcements concerning the transactions provided for in
this Agreement by either the Company or Parent shall be subject to the approval
of the other in all essential respects, except that the approval of the Company
shall not be required as to any statements and other information which Parent
may submit to its shareholders.
11.03 DEFAULT. Should any party to this Agreement default in any of the
covenants, conditions, or promises contained herein, the defaulting party shall
pay all costs and expenses, including a reasonable attorney's fee, which may
arise or accrue from enforcing this Agreement, or in pursuing any remedy
provided hereunder or by the statutes of the State of Texas, United States of
America.
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11.04 ASSIGNMENT. This Agreement may not be assigned in whole or in part by the
parties hereto without the prior written consent of the other party or parties,
which consent shall not be unreasonably withheld.
11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their successors and assigns.
11.06 HOLIDAYS. If any obligation or act required to be performed hereunder
shall fall due on a Saturday, Sunday or other day which is a legal holiday
established by the State of Texas, such obligation or act may be performed on
the next succeeding business day with the same effect as if it had been
performed upon the day appointed.
11.07 COMPUTATION OF TIME. The time in which any obligation or act provided by
this Agreement is to be performed is computed by excluding the first day and
including the last, unless the last day is a holiday, in which event such day
shall also be excluded.
11.08 GOVERNING LAW AND VENUE. This Agreement shall be governed by and
interpreted pursuant to the laws of the State of Texas.
11.09 PARTIAL INVALIDITY. If any term, covenant, condition or provision of this
Agreement or the application thereof to any person or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Agreement or
application of such term or provision to persons or circumstances other than
those as to which it is held to be invalid or unenforceable shall not be
affected thereby and each term, covenant, condition or provision of this
Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law.
11.10 NO OTHER AGREEMENTS. This Agreement constitutes the entire Agreement
between the parties and there are and will be no oral representations which will
be binding upon any of the parties hereto.
11.11 RIGHTS ARE CUMULATIVE. The rights and remedies granted hereunder shall be
in addition to and cumulative of any other rights or remedies provided under the
laws of the State of Texas.
11.12 WAIVER. No delay or failure in the exercise of any power or right shall
operate as a waiver thereof or as an acquiescence in default. No single or
partial exercise of any power or right hereunder shall preclude any other or
further exercise thereof or the exercise of any other power or right.
11.13 SURVIVAL OF COVENANTS, ETC. All covenants, representations, and warranties
made herein to any parties or in any statement or document delivered to any
party hereto, shall survive the making of this Agreement and shall remain in
full force and effect until the obligations of such party hereunder have been
fully satisfied.
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11.14 FURTHER ACTION. The parties hereto agree to execute and deliver such
additional documents and to take such other and further action as may be
required to carry out fully the transaction(s) contemplated herein.
11.15 AMENDMENT. This Agreement or any provision hereof may not be changed,
waived, terminated or discharged except by means of a written supplemental
instrument signed by the party or parties against whom enforcement of the
change, waiver, termination, or discharge is sought.
11.16 HEADINGS. The descriptive headings of the various Sections or parts of
this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
11.17 COUNTERPARTS. This agreement may be executed in two or more partially or
fully executed counterparts, each of which shall be deemed an original and shall
bind the signatory, but all of which together shall constitute but one and the
same instrument.
11. 18 REVERSE SPLITS. No further reverse splits may be enacted by Triad
Compressor, Inc. shareholders for a period of eighteen months from closing
hereunder.
IN WITNESS WHEREOF, the parties hereto executed the foregoing
Reorganization Agreement as of the day and year first above written.
PARENT:
SAKER ONE CORPORATION
BY:/S/ROBERT KROPF
Robert Kropf, President
Attest:__________________________
SUBSIDIARY:
TRIAD COMPRESSOR, INC.
(a Nevada Corporation)
BY: /S/ROBERT KROPF
Robert Kropf, President
Attest:___________________________
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COMPANY:
TRIAD COMPRESSOR, INC.
(a Texas Corporation)
BY:/S/MICHAEL R. BLOOM
----------------------
Michael R. Bloom, Director
Attest:
BY:/S/ROBERT KROPF
Robert Kropf Individually
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<TABLE>
<CAPTION>
SCHEDULE A
<S> <C> <C> <C>
NAME OF NO. OF MERGER TRANSFER SHARES
COMPANY COMPANY SHARES TO BE TO BE TRANSFERRED
SHAREHOLDER SHARES ISSUED BY BY PARENT
PARENT SHAREHOLDERS
------------ ----------- ---------------- -----------------
13,788,297 11,549,105 1,543,527
TOTAL: 13,788,297 11,549,105 1,543,527
</TABLE>
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