SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): Nov 18, 1997
ADEN ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
California 00-18140 87-0447215
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File No.) Ident No.)
2410 South 156th Circle, Suite 100, Omaha, Nebraska 68130
(Address of principal executive offices) (Zip Code)
(402) 334-5556)
(Registrant s telephone number, including area code)
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Item 5. Other Information
On November 18, 1997, the Registrant announced it had entered into an
agreement to acquire the intellectural property of Focused
Energy International Incorporated which consists of intellectural
property including trade names, business concepts and a plan.
Separately, Aden Enterprises, Inc., has entered into
agreements with former stockholders of Focused Energy
International Incorporated and physicians and consultants in
the industry through its wholly owned subsidiary, LightWaves Acquisition
Corporation.
See Agreement attached.
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EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this
Agreement ) is made and entered as of the 5th day of
November, 1997, by and among Focused Energy
International, Inc., a Delaware corporation ( FEII ),
Lightwaves Acquisition Corporation, a Delaware
corporation ( NEWCO ), Steven Goldstein
( Goldstein ) and each Participating FEII Minority
Stockholder (as defined below).
WHEREAS, each Participating FEII Minority
Stockholder is a holder of capital stock of FEII;
WHEREAS, NEWCO desires to acquire the
holdings of each Participating FEII Minority
Stockholder in FEII in exchange for shares of
common stock of NEWCO;
WHEREAS, FEII desires to redeem, and
NEWCO desires to tender to FEII, the shares of
capital stock of FEII held by NEWCO as a result of
such exchange;
WHEREAS, inasmuch as FEII presently has
no tangible assets with which to effect such a
redemption, Goldstein, the controlling person of FEII,
wishes to repay certain indebtedness owed FEII under
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of
the premises and the mutual promises and covenants
set forth herein, the parties agree as follows:
1. Each Participating FEII Minority
Stockholder severally agrees, subject to the terms and
conditions of this Agreement,
a. to transfer to NEWCO on the Closing
Date all shares of FEII Capital Stock
owned by it (but not less than all such
shares) in exchange for each share of
FEII Capital Stock one-half of one
share of NEWCO Common Stock .
b. to deliver to the Escrow Agent, not
later than one Business Day
immediately preceding the Closing
Date, a certificate or certificates
representing the number of shares of
FEII Capital Stock owned of record by
such Stockholder, each endorsed in
blank, or accompanied by stock
powers endorsed in blank. Such
certificates and stock powers shall be
held by the Escrow Agent as provided
in Section 5 hereof.
2. NEWCO shall deliver to the Escrow
Agent, not later than one Business Day immediately
preceding the Closing Date, duly executed certificates
representing the securities to be issued by NEWCO in
connection with Section 1 hereof in the name of each
Participating FEII Minority Stockholder.
3. Goldstein shall pay FEII the sum of
$120,000, which shall be used to redeem the FEII
capital stock acquired by NEWCO hereunder, payable
as follows:
a. Not later than one Business Day
immediately preceding the Closing
Date, Goldstein shall cause to be
deposited with the Escrow Agent the
sum of $60,000 in immediately
available funds (the Initial Payment ).
At the Closing, the Escrow Agent shall
disburse the Initial Payment to
NEWCO. The Initial Payment may be
made by check or wire transfer to such
account or accounts as the Escrow
Agent shall designate in writing.
Pending the Closing, Escrow Agent
may deposit the Initial Payment into
any federally insured checking or
money market account maintained by
Escrow Agent with any national or
state financial institution.
b. Not later than June 1, 1998, Goldstein
shall cause to be paid to NEWCO on
behalf of FEII the sum of $60,000 in
immediately available funds (the Final
Payment ). The Final Payment may be
made by check or wire transfer to such
account or accounts as NEWCO shall
designate in writing.
4. Each Participating FEII Minority
Stockholder covenants and agrees as follows:
a. Each Participating FEII Minority
Stockholder irrevocably constitutes
and appoints NEWCO (and each of its
officers and employees) as his, her or
its true and lawful attorney-in-fact with
full power and authority in his, her or
its name, place and stead to execute,
acknowledge, deliver, swear to, file
and record at the appropriate public
offices such documents as may be
necessary or appropriate to carry out
the obligations of such Participating
FEII Minority Stockholder under this
Agreement, including without
limitation all instructions to the
Escrow Agent contemplated in Section
5 hereof or extending the Closing Date
as contemplated in Section 9 hereof.
b. The appointment set forth in the
previous paragraph shall be deemed to
be a power coupled with an interest
which shall survive the bankruptcy,
death, adjudication of incompetence or
insanity, or dissolution of any
Participating FEII Minority
Stockholder.
5. The rights and duties of the Escrow
Agent shall be as follows:
a. Escrow Agent shall hold the Escrow
Deposit pending the Closing. Upon
receipt of written notification from
each of the parties that the Closing is
being held, Escrow Agent shall deliver
the Escrow Deposit in accordance with
this Agreement. Upon receipt of
written instructions from each of the
parties that the Closing will not be
held, Escrow Agent shall deliver the
Escrow Deposit to the respective party
which contributed to the Escrow
Deposit pursuant to this Agreement.
b. In the event of any dispute among the
parties regarding the delivery of the
Escrow Deposit or in the event that
Escrow Agent shall receive conflicting
demands or instructions with respect
thereto, Escrow Agent may withhold
such delivery until such dispute is
resolved. Alternatively, Escrow Agent
shall be entitled to deposit the Escrow
Deposit into a court of general
jurisdiction in Douglas County,
Nebraska, and to interplead all of the
parties hereto in connection therewith.
Each of the parties hereto hereby
consent to the jurisdiction of such
court in connection with any such
dispute.
c. Escrow Agent may act in reliance upon
any writing or instrument or signature
that it in good faith believes to be
genuine, may assume the validity and
accuracy of any statement or assertion
contained in such a writing or
instrument and may assume that any
person purporting to give any writing,
notice, advice or instructions in
connection with the provisions hereof
has been duly authorized to do so.
Escrow Agent shall not be liable in any
manner for the sufficiency of or
corrections as to form, manner,
execution, or validity of any instrument
presented to it, nor as to the identity,
authority, or right of any person
executing the same. Escrow Agent s
duties hereunder shall be limited to the
safekeeping of deposits received by it
as Escrow Agent and for the
disposition of the same in accordance
with the written instruments accepted
by it as the Escrow Agent.
d. Escrow Agent may consult with
counsel of its own choice and shall
have full and complete authorization
and protection for any action taken or
suffered by it hereunder in good faith
and in accordance with the opinion of
such counsel. Escrow Agent shall
otherwise not be liable for any
mistakes of fact or error of judgment,
or for any acts or omissions of any
kind unless caused by its willful
misconduct or gross negligence. Each
of the parties jointly and severally
indemnify and hold Escrow Agent
harmless from and against all
reasonable costs, claims and expenses,
including reasonable attorneys fees,
incurred in connection with the
performance by Escrow Agent of its
duties hereunder except for any
damage, liability or loss resulting from
the gross negligence or willful
misconduct of Escrow Agent or any of
its officers or employees.
e. Escrow Agent may resign upon thirty
(30) days written notice to the parties
hereto. If a successor Escrow Agent is
not appointed by mutual agreement of
FEII and NEWCO within this
thirty-day period, Escrow Agent may
petition any court of competent
jurisdiction to name a successor.
6. On the Closing Date, the Escrow
Agent shall deliver to each Participating FEII
Minority Stockholder a stock certificate representing
the NEWCO Common Stock to be delivered to such
Stockholder pursuant to Section 1 hereof.
7. The obligations of FEII and Goldstein
to consummate the transactions under this Agreement
hereof shall be subject to FEII and Goldstein having
obtained on terms and conditions satisfactory to each
of them releases of liability from certain creditors of,
or holders of claims against, FEII (other than each
Participating FEII Minority Stockholder).
8. The obligations of each Participating
FEII Minority Stockholder is subject to execution and
delivery with the Escrow Agent by the Goldstein
Family Trust not less than one Business Day
immediately preceding the Closing Date of a
guarantee in substantially the form of Exhibit A
hereto.
9. The closing of the transactions
contemplated herein (the Closing ) shall take place
at the offices of Escrow Agent, commencing at 9:00
a.m. local time on November 10, 1997, or at such
other time and date as the parties may mutually agree
(the Closing Date ).
10. Effective as of the Closing Date,
a. Each Participating FEII Minority
Stockholder, on behalf of itself and
each of its Related Persons, hereby
releases and forever discharges FEII
and each of its past, present and future
Related Persons (individually, a
Releasee and collectively,
Releasees ) from any and all claims,
demands, proceedings, causes of
action, orders, obligations, contracts,
agreements, debts and liabilities
whatsoever, whether known or
unknown, suspected or unsuspected,
both at law and in equity, which each
Participating FEII Minority
Stockholder or any of its respective
Related Persons now has, have ever
had or may hereafter have against the
respective Releasees arising
contemporaneously with or prior to
the Closing Date or on account of or
arising out of any matter, cause or
event occurring contemporaneously
with or prior to the Closing Date,
whether sounding in contract, tort or
otherwise, and whether or not relating
to claims pending on or asserted after
the Closing Date, including, without
limitation, any claims pertaining to the
purchase or acquisition of FEII Capital
Stock.
b. Each Participating FEII Minority
Stockholder hereby irrevocably
covenants to refrain from, directly or
indirectly, asserting any claim or
demand, or commencing, instituting or
causing to be commenced, any
proceeding of any kind against any
Releasee, based upon any matter
purported to be released hereby.
c. Without in any way limiting any of the
rights and remedies otherwise available
to any Releasee, Each Participating
FEII Minority Stockholder shall
indemnify and hold harmless each
Releasee from and against all loss,
liability, claim, damage (including
incidental and consequential damages)
or expense (including costs of
investigation and defense and
reasonable attorney s fees) whether or
not involving third party claims, arising
directly or indirectly from or in
connection with (i) the assertion by or
on behalf of each Participating FEII
Minority Stockholder or any of its
Related Persons of any claim or other
matter purported to be released
pursuant to this Release and (ii) the
assertion by any third party of any
claim or demand against any Releasee
which claim or demand arises directly
or indirectly from, or in connection
with, any assertion by or on behalf of
each Participating FEII Minority
Stockholder or any of its Related
Persons against such third party of any
claims or other matters purported to be
released pursuant to this Release.
11. For purposes of this Agreement, the
following terms have the meanings set forth in this
Section 11:
a. Business Day means any day on
which commercial banks are not
authorized or required to close in
Omaha, Nebraska.
b. Escrow Agent means ATI Title
Company, with offices at 314 So. 19th
Street, Omaha, Nebraska 68102.
c. Escrow Deposit means the Initial
Payment and the certificates
representing shares of FEII Capital
Stock and other documents deposited
with the Escrow Agent pursuant to the
provisions of this Agreement.
d. Family with respect to an individual
includes (i) the individual, (ii) the
individual s spouse and former
spouses, (iii) any other natural person
who is related to the individual or the
individual s spouse within the second
degree, and (iv) any other natural
person who resides with such
individual.
e. FEII Capital Stock means shares of
capital stock of any class of FEII.
f. Material Interest means direct or
indirect beneficial ownership (as
defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of
voting securities or other voting
interests representing at least five
percent (5%) of the outstanding voting
power of a Person or equity securities
or other equity interests representing at
least five percent (5%) of the
outstanding equity securities or equity
interests in a Person.
g. NEWCO Common Stock means the
Common Stock of NEWCO, par value
$0.01 per share.
h. Participating FEII Minority
Stockholder means each Person listed
on Schedule 1 hereto.
i. Person means any individual,
corporation (including any nonprofit
corporation), general or limited
partnership, limited liability company,
joint venture, estate, trust, association,
organization, labor union, or other
entity.
j. Related Person means:
i. With respect to a particular
individual,
(A) each other member of
such individual s
Family;
(B) any Person that is
directly or indirectly
controlled by such
individual or one or
more members of such
individual s Family;
(C) any Person in which
such individual or
members of such
individual s Family hold
(individually or in the
aggregate) a Material
Interest;
(D) any Person with respect
to which such
individual or one or
more members of such
individual s Family
serves as a director,
officer, partner,
executor, or trustee (or
in a similar capacity);
and,
(E) any heir, executor,
administrator or assign
of such individual.
ii. With respect to a specified
Person other than an individual,
(A) any Person that directly
or indirectly controls, is
directly or indirectly
controlled by, or is
directly or indirectly
under common control
with such specified
Person;
(B) any Person that holds a
Material Interest in
such specified Person;
(C) each Person that serves
as a director, officer,
partner, employee,
agent, representative,
consultant, attorney,
adviser, counselor,
executor, or trustee of
such specified Person
(or in a similar
capacity);
(D) any Person in which
such specified Person
holds a Material
Interest;
(E) any Person with respect
to which such specified
Person serves as a
general partner or a
trustee (or in a similar
capacity);
(F) any Related Person of
any individual described
in clause (B) or (C);
and,
(G) any successor or assign
of such specified
Person.
12. The parties and their respective
attorneys represent and agree that they will keep each
and every term of this Agreement confidential and
neither party nor their respective attorneys, agents, or
representatives will publish, publicize, or disseminate
or cause to be published, publicized or disseminated in
any manner, information relating to the substance or
contents of this Agreement to any Person or Persons
except as may be required by law or necessary to
effect compliance with law.
13. NEWCO represents and warrants to
each of the other parties as follows:
a. NEWCO is a corporation duly
incorporated, validly existing and in
good standing under the laws of
Delaware. NEWCO has corporate
power to make and perform this
Agreement.
b. The making and performance by
NEWCO of this Agreement has been
duly authorized by all necessary
corporate action and does not and will
not violate any provision of law or of
the certificate of incorporation or by-
laws of NEWCO or result in a breach
of, or constitute a default under, or
require any consent or result in the
creation of any lien upon any property
or assets of NEWCO.
c. This Agreement constitutes the legal,
valid and binding obligation of
NEWCO, enforceable in accordance
with its terms, except as the
enforceability thereof may be limited
by applicable bankruptcy, insolvency,
reorganization, moratorium or similar
laws affecting creditors rights
generally, and subject to the
application of general principles of
equity.
d. NEWCO has all requisite power and
authority to issue to each of the
Participating FEII Minority
Stockholders the securities to be
issued by NEWCO pursuant to this
Agreement, and NEWCO has all
requisite power and authority to
deliver such securities in accordance
with the terms of this Agreement.
14. Each of the Participating FEII
Minority Stockholders represents and warrants to
FEII and NEWCO as follows:
a. Such Participating FEII Minority
Stockholder is the record owner, free
and clear of all liens and
encumbrances, of the number of shares
of FEII Capital Stock set forth beside
its name on Schedule 1 hereto.
b. The making and performance of such
Participating FEII Minority
Stockholder of this Agreement has
been duly authorized by all necessary
organizational action of the
Stockholder and do not and will not
violate any provision of law or of the
organizational documents of such
Stockholder or result in a breach of, or
constitute a default under, or require
any consent pursuant to, any
agreement or other instrument to
which such Stockholder is a party or
by which such Stockholder or its
properties may be bound or affected.
c. Such Participating FEII Minority
Stockholder has been afforded the
opportunity to obtain and review from
NEWCO such documents and
information concerning NEWCO and
the transactions contemplated herein,
and to ask questions and receive
answers concerning NEWCO and the
transactions contemplated herein, and
such other matters as it has deemed
necessary or appropriate in making its
own evaluation of NEWCO and the
transactions contemplated herein.
d. Such Participating FEII Minority
Stockholder acknowledges that it has
not relied in any respect upon any
representations, express or implied, by
FEII or any Related Person of FEII
(unless such Person is also a Related
Person of NEWCO) in connection
with the merits and risks of investing in
NEWCO pursuant to the terms and
provisions of this Agreement.
e. Such Participating FEII Minority
Stockholder acknowledges that
i. NEWCO is a newly organized
corporation which has no
operating history nor any
material tangible assets except
as contemplated in this
Agreement;
ii. NEWCO s success will depend
in part on its ability to deal
with the problems, expenses,
and delays frequently
associated with establishing a
new business venture;
iii. future losses are likely before
NEWCO s operations may
become profitable; and,
iv. there is no assurance that
NEWCO s operations will
prove profitable.
f. Such Participating FEII Minority
Stockholder is acquiring the shares of
NEWCO Common Stock for its own
account for investment and not with a
view to the distribution thereof or with
any present intention of distributing or
selling any portion thereof.
g. Such Participating FEII Minority
Stockholder acknowledges that the
shares of NEWCO Common Stock to
be acquired by it hereunder are illiquid
and have not been registered under the
Securities Act of 1933, as amended,
and acknowledges and agrees that they
may be resold (which resale is not
presently contemplated) only if
registered pursuant to the provisions of
such Act or if an exemption from
registration is not available, or under
circumstances where neither such
registration nor such an exemption is
required by law, and that such shares
will bear a written legend to such
effect.
15. This Agreement constitutes the entire
agreement between the parties and supersedes any
prior understandings, agreements, or representations
among the parties, written or oral, to the extent they
related in any way to the subject matter hereof. No
amendment of any provision of this Agreement shall
be valid unless the same shall be in writing and signed
by each of the parties.
16. Each of the parties will bear its own
costs and expenses (including legal fees and expenses)
incurred in connection with this Agreement and the
transactions contemplated herein; provided, however,
that FEII shall be obligated to pay the fees and
expenses of the Escrow Agent.
17. The schedules and exhibits identified in
this Agreement are incorporated herein by reference
and made a part hereof.
18. Any term or provision of this
Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of
the offending term or provision in any other situation
or in any other jurisdiction.
19. This Agreement shall not confer any
rights or remedies upon any Person other than the
parties, Related Persons of each of the parties, and
their respective successors and assigns.
20. This Agreement shall be governed by
and construed in accordance with the domestic laws
of the State of Nebraska without giving effect to any
choice or conflict of law provision or rule (whether of
the State of Nebraska or any other jurisdiction) that
would cause the application of the laws of any
jurisdiction other than the State of Nebraska.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day and year
first above written.
LIGHTWAVES
ACQUISITION
CORPORATION
By:
FOCUSED ENERGY
INTERNATIONAL,
INC.
By:
STEVEN GOLDSTEIN
The undersigned hereby accepts the foregoing
appointment as Escrow Agent and agrees to be bound
by the terms and conditions of this Agreement as of
this ___ day of ________, 1997.
ATI TITLE COMPANY
By:
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SIGNATURE PAGE OF PARTICIPATING FEII
MINORITY STOCKHOLDER
Authorized Signature
Printed Name of Stockholder
Title (if applicable)
Social Security No. or Federal Tax I.D. No.
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