U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 even reported): Feb. 17, 1996
COMMISSION FILE NUMBER: 33-11324-LA
NETUSA, INC.
(Exact name of registrant as specified in its charter)
Colorado
(State or other jurisdiction of incorporation or organization)
84-1035751
(I.R.S. Employer Identification Number)
201 San Antonio Cir., C250, Mountain View, CA 94040
(Address of principal executive offices)
Registrant's telephone number: (650) 948-6200
TECHNOLOGY MANAGEMENT AND MARKETING, INC.
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
<PAGE>
ITEM 1: CHANGES IN CONTROL OF REGISTRANT
(a) Dr. Wun C. Chiou, Sr., of Mountain View, Calif., acquired control
of Technology Management and Marketing, Inc. (hereinafter TMMI, or "the
company") via a purchase of 69% of TMMI from Jerry Richmond on Feb. 16, 1996
for the consideration of $35,000. TMMI was formerly controlled by its
president, Richmond. No bank loans were involved in the purchase. At the
same
time of the acquisition, the company was renamed NetUSA, Inc. (hereinafter
NetUSA). Please refer to the Acquisition Agreement attached hereto as Exhibit
#2 for complete details regarding the acquisition.
(b)
<TABLE>
<CAPTION>
<S> <S> <S> <S>
(1) (2) (3) (4)
Title of Name/Address Amount and Nature of Percent of
Class of Beneficial Owner Beneficial Ownership Class
- -------- ------------------- -------------------- ----------
Common Dr. Wun C. Chiou 3,000,000 69%
</TABLE>
There are no arrangements or understandings among members of both
the former and new control groups and their associates with respect to the
elecof other matters.
ITEM 2: ACQUISITION OR DISPOSITION OF ASSETS
On February 16, 1996, the company acquired Pacific Microelectronics, Inc. of
Mountain View, Calif. (hereinafter Pacific Micro). Pacific Micro, at the
time, was a company developing PC software and telecommunications solutions
The acquisition was by the means of a stock swap. 3 shares of TMMI stock was
given to Pacific Micro shareholders per 10 shares of Pacific Micro stock held,
1for a total of 3,000,000 shares granted (for the 10,000,000 Pacific
Microstock).
Pacific Micro also transferred all of its assets to NetUSA. At
the time of Pacific Micro's acquisition, Pacific Micro was controlled by its
president, Dr. Wun C. Chiou, who simultaneously became NetUSA's president.
No bank loans were involved in the transaction.
Item 5: Other Events
As discussed above in Item 1, the company's name was changed to NetUSA, Inc.,
and its headquarters were moved to Mountain View, Calif., to the
headquarters ofthe former Pacific Micro. Please refer to the Acquisition
Agreement attache hereto as Exhibit #2 for complete details regarding
the acquisition.
ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS
(a) Below is the unaudited Balance Sheet of Pacific Microelectronics, Inc.
provided at the time of acquisition by NetUSA. Audited figures were not
provided
at the time of the acquisition and are not available to NetUSA from Pacific
Micro.
NETUSA, INC.
formerly PACIFIC MICROELECTRONICS, INC.
UNAUDITED BALANCE SHEET
February 26, 1996
<TABLE>
<CAPTION>
<S> <S>
Assets
Cash and Cash Equivalents $297,298
Account Receivable, Net 236,435
Inventory 5,052
Prepaid Expenses 1,448
----------
Current Assets $540,233
Property and Equipment 69,631
----------
Total Assets $609,854
Liabilities and Stockholders' Equity
Accounts Payable and Accruals/
Current Liabilities $299,868
Total Long-Term Liabilities 70,788
Total Stockholders' Equity 239,198
----------
Total Liability and Capital $609,854
</TABLE>
(c) Exhibits:
Exhibit No. 2 - Acquisition Agreement
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NetUSA, Inc.
Date: December 29, 1997 By:/s/ Wun C. Chiou, President and
Director
EXHIBIT 2
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ACQUISITION AGREEMENT
PURSUANT TO A SHARE EXCHANGE
The undersigned, original parties wish to amend the previously signed and
executed AGREEMENT AND PLAN OF REORGANIZATION, dated as of this December 5,
1995, by and between TECHNOLOGY MANAGEMENT AND MARKETING, INC., a Colorado
corporation having its principal place of business at 11809 Rydalwater Lane,
Austin, TX 78754 ("TMMI" or "BUYER"), and PACIFIC MICRO ELECTRONICS, INC.,
("PMI" or "SELLER") a California corporation having its principal place of
business at 201 San Antonio Circle, Suite 250, Mountain View, CA 94940. This
amended agreement, dated as of February 26, 1996, supersedes the previous
agreement, dated December 5, 1995. The persons identified in Schedule 4
hereto, are sometimes hereinafter jointly referred to as "Stockholders."
WITNESSETH:
WHEREAS, Stockholders own an aggregate of a total of Ten Million (10,000,000)
shares of the voting common stock, (no par) value of PMI, constituting all of
the issued and outstanding capital of PMI (the "PMI Shares"); and
WHEREAS, TMMI is authorized to issue Fifty Million (50,000,000) shares of
voting common stock, $.001 par value (the "TMMI Stock") of which an aggregate
of Five Hundred Thousand (500,000) Shares are issued and outstanding as of the
date hereof; and
WHEREAS, TMMI desires to acquire all of the PMI Shares and Stockholders desire
to exchange of the PMI Shares, TMMI shall exchange unregistered Common Shares
of TMMI for Common Shares of PMI, which shall have all of the rights and
preferences as to TMMI, that the exchanged shares hold as to PMI (the
"restricted Shares"), in an exchange that qualifies under Sections 354 and 368
of the Internal Revenue Code of 1954, as amended; and
Now, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereby agree as follows:
1. SALE OF THE SHARES
1.01 SHARES BEING EXCHANGED. Subject to the terms and conditions for
this Agreement, at the "Closing" as provided for in Section 2.01 hereof, each
Stockholder, relying specifically on the covenants, representations,
warranties and agreements of TMMI, is selling, assigning, and delivering to
TMMI the number of PMI shares set forth in Schedule 8, attached hereto and
incorporated by this reference, opposite the name of each Shareholder, and
TMMI is purchasing such Shares from each Stockholder, free and clear of all
liens, claims, options, charges, and encumbrance whatsoever:
1.02 CONSIDERATION. Subject to the terms and conditions of this
Agreement, relying specifically on the Stockholders representations, annuities
and agreements, contained herein, and in consideration of the aforesaid sale,
assignment, and delivery of the PMI Shares to TMMI and delivery of $30,000 to
IPO Consultants, Inc. for services rendered in connection with this
transaction, in full payment of the aforesaid sale, assignment and delivery,
TMMI is delivering at the Closing Restricted Shares as set forth in Schedule
1.
2. CLOSING
2.01 TIME AND PLACE. The closing of the transactions contemplated by
this Agreement shall occur on or before the Seventh day of February, 1996 at
10:00 a.m. or on such other date and time the parties shall determine, but in
no event later than February 29, 1996.
2.02 DELIVERIES BY PMI. At the closing, the Stockholders shall deliver to
TMMI (unless previously delivered) the following:
2.02(a). Certificates representing the PMI Shares, duly endorsed or
accompanied by stock powers duly executed in blank, and otherwise in form
acceptable for transfer on the books of PMI, with all requisite stock transfer
stamps attached;
2.02(b). Certificates or telegrams from appropriate authorities as to the
good standing of PMI in the state of California dated as of the most recent
practicable date;
2.02(c). The comfort letter referred to in Section 6 hereof;
2.02(d). Unaudited balance sheets of PMI as of December 1995, and related
statement of income showing, inter alia, PMI's operations;
2.02(e). The investment letters referred to in Section 8.01 hereof;
2.02(f). Minutes of Shareholders and Board of Directors meeting
authorizing the actions herein set forth; and
2.02(g). A Company check in the amount of $30,000 (U.S.) made payable to
IPO Consultants.
2.03 DELIVERIES BY TMMI. At the Closing, TMMI is delivering to the
Stockholders (unless previously delivered) the following:
2.03(a). Certificates representing Three Million (3,000,000) Restricted
Shares in accordance with Section 1.02(a);
2.03(b). The corporate records of TMMI including the shareholder list,
Articles of Incorporation, and any amendments thereto, stock book, stock
ledgers, minute book, and corporate seal of TMMI;
2.03(c). Certificates or telegrams from appropriate authorities as to the
good standing in the state of Colorado and each jurisdiction in which it is
qualified to do business as a foreign corporation dated as of the most recent
practicable date;
2.03(d). Balance sheets of TMMI as of September, 1990 and 1989 and related
statements of income from inception (April 3, 1990 through September, 1990),
as reflected in the latest 10K financials for September 30, 1990.
2.03(e). Minutes of Shareholders and Board of Directors meetings of TMMI
authorizing the actions herein contemplated;
2.03(f). The comfort letter referred to in Section 6 hereof; and
2.03(g). Resignations of all directors and officers of TMMI.
3. RELATED TRANSACTIONS
3.01 RESIGNATIONS.
3.01(a). At the Closing, all directors and officers of TMMI are submitting
their resignations from their respective directorships and offices, and the
following persons who have expressed their willingness to serve shall be
appointed directors and elected to the offices set forth below opposite their
names to serve until successors have been selected and qualified:
President and C.E.O. & Director Dr. Wun C. Chiou
4. REPRESENTATIONS AND WARRANTIES OF PMI
4.01 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each of the
Stockholders, hereby represents and warrants, jointly and severally, to TMMI
as set forth in this Section 4.
4.02 AUTHORIZATION. The execution and delivery by PMI and the
consummation by PMI of this Agreement by PMI of the transactions contemplated
hereby have been duly authorized by PMI's Shareholders and Board of Directors,
as required by law or otherwise. Complete and correct copies of minutes, as
certified by PMI's Secretary, of the relevant resolutions to that effect, as
adopted at the appropriate meeting, or by written consent, shall be delivered
at Closing.
4.03 NO VIOLATION. Neither the execution and delivery of this
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Agreement nor the consummation by PMI or the Shareholders of the transactions
contemplated hereby violates or conflicts with the certificate of
incorporation or by-laws of PMI or any agreement or other restriction of any
kind to which PMI is a party or by which it is bound.
4.04 VALIDITY OF PMI'S OUTSTANDING SHARES. All of the outstanding
- ---- -------------------------------------
shares of PMI issued and outstanding are duly authorized, validly issued,
fully paid and nonassessable.
4.05 TITLE TO THE PMI SHARES. Each of the Stockholders owns, and is
- ---- ------------------------
transferring to TMMI at the Closing, good, valid, and marketable title to the
number of PMI Shares set forth opposite the name of such Stockholder in
Section 1.01 hereof, free and clear of all liens, claims, options, charges,
and encumbrances whatsoever. There are no outstanding options, warrants, or
other rights to purchase or acquire any of the PMI Shares from the respective
Stockholders.
4.06 VALID AND BINDING AGREEMENT. As to each Stockholder, this
- ---- -------------------------------
Agreement constitutes the valid and binding agreement of such Stockholder,
enforceable in accordance with its terms, and, as to each stockholder, neither
the execution and delivery of this Agreement or the consummation by such
Stockholder of the transact contemplated hereby (a) violates or will violate
any statute or law, or any rule, regulation, or order of any court or
governmental authority, or (b) violates or will violate, or conflicts with, or
constitutes a default under any, contract, commitment, agreement,
understanding, arrangement, or restriction of any kind to which such
stockholder is bound.
4.07 THE ACQUISITION CANDIDATE - PACIFIC MICROELECTRONICS, INC.
- ---- ----------------------------------------------------------------
4.08(a). PMI is a corporation duly organized on September 1, 1987 validly
existing, and in good standing under the laws of the State of California and
has the corporate power and authority to carry on its business.
Notwithstanding, PMI is and has been from its incorporation engaged in the
business of providing worldwide access to business information via the
Internet hub which is operated from a number of points through out the globe
including, California, Japan, China, UK, Mexico and Australia. The purpose of
the system is to provide access to a "Super Shopping Mall" where vendors and
service companies can provide access to and information on hundreds of goods
and services including consumer electronics, sports information and goods;
telecom products and automotive information and goods. The majority of the
Company's business is generated by its "Pacific Micro Electronics, Inc.,"
shopping mall centered in Mountain View, California which provides central
access to information on a variety of clients to more than 10,000 customers
per day. Pacific Micro Electronics, Inc., has developed certain marketing
plans and financial forecasts, determining that the marketing of its service
is feasible in the United States and other parts of the world and its home
page can be reached via Internet at: http://www.netusa.com.
4.08(b). To date PMI currently has contracts with three (3) independent
operating Internet providers existing in 3 countries as follows:
On October 1, 1995, the Company entered into an agreement with Technicom
Ltd. of Nigeria. The terms of this agreement are summarized as follows:
Technicom will be responsible for marketing in Nigeria and all attendant local
cost, and also will pay for the hardware, software, and any other
communication costs from the Mountain View site to the local PTT for the setup
and monthly charge. NetUSA will provide the communication hardware and
software as well as necessary technical support in the USA to ensure smooth
connections for all subscribers. Also, NetUSA will assist in procuring the
hardware and software for Nigeria at the highest possible discount. NetUSA
will have 15% of the total sales of Technicom plus $2,500 per month for the
first six months technical, training and support as the nonrecursive
engineering cost.
On November 8, 1995, NetUSA and Wah Lee Industrial Corp. of Taipei,
Taiwan agreed to form a joint venture called NetTaiwan with the following
conditions: NetTaiwan will be responsible for sales and marketing in Taiwan
and all Taiwan local cost, and NetTaiwan will also pay for the hardware,
software, and any other communication costs from the Mountain View site to
Taiwan for the setup and monthly charge. NetUSA will assist in procuring the
hardware and software for NetTaiwan at the highest possible discount, and will
provide the communication hardware and software as well as necessary technical
support in the US to ensure smooth connections for all subscribers. NetUSA
will have 15% of the equity of NetTaiwan plus $6,000 per month for the first
six months technical, training and support as the nonrecursive engineering
cost.
On November 18, NetUSA and ASR International, a Japanese company based in
Tokyo agreed to a joint partnership named NetJapan where: ASR International
will be responsible for sales and marketing in Japan and all Japanese local
expenses, and also will pay for the hardware, software, and any other
communication costs from Mountain View to ASR Japanese site for the setup and
monthly charge. NetUSA will provide the communication hardware and software
as well as necessary technical support in the USA to ensure smooth connections
for all subscribers. Also, NetUSA will assist in procuring the hardware and
software for NetJapan at the highest possible discount. NetUSA will own 75%
of the total equity of NetJapan with $75,000 investment. ASR International
and its respective investors will hold 25% of the total equity with $25,000
investment. All Agreements of PMI are contained in Schedule 5.
4.08(c). The copies of the articles on incorporation, and all amendments
thereto, of PMI, as certified by the Secretary of the State of California, and
of the by-laws of PMI, as amended to date, as certified by its secretary,
which are being delivered to TMMI at the Closing, are complete and correct and
in effect on the date of closing. All minutes of PMI are contained in its
minute book which will be delivered to TMMI at the Closing.
4.08(d). PMI is licensed and qualified to do business as a foreign
corporation in California.
4.08(e). The authorized capital stock of PMI consists solely of One
hundred Million shares (100,000,000) shares of common stock, no par value and
except for the PMI shares, all of which are duly authorized, validly issued
and outstanding, fully paid, and nonassessable, there are no shares of capital
stock of PMI outstanding. Further, there are no options, warrants, or rights
to purchase or otherwise acquire any securities of PMI.
4.09 SUBSIDIARIES AND AFFILIATES. PMI owns no capital stock or other
- ---- ----------------------------
securities of any corporation and has no direct or indirect interest, and
since its incorporation has had no such interest in any business. None of the
Stockholders nor any of their "affiliates" or "associates," as such terms are
defined in the Rules and Regulations (the "Rules") of the Securities Act of
1933, as amended (the "act") has any direct or indirect interest in any
corporation or any business that in the United States competes with, conducts
business similar to, has any agreement or arrangement with, or is otherwise
involved in any way with, the business conducted by PMI, or has any direct or
indirect interest in any property used by or relating to the business of PMI,
except through ownership of the PMI shares.
4.10 NO VIOLATION AGREEMENT. Neither the execution nor delivery of
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this Agreement, nor the consummation of the transaction contemplated hereby
violated or will violate, or conflicts with or will conflict with, or
constitutes a default under or will constitute a default under the articles of
incorporation or by-laws of PMI as amended, or any contract, commitment,
agreement, understanding, arrangement, or restriction of any kind to which PMI
is a party or by which it is bound.
4.10(a). Financial Condition of PMI and its Statements. The unaudited
----------------------------------------------
balance sheets as of November 30, 1995 and related statement of income, and
the income statements for the period ended twelve months ended November 30,
1995 (the "PMI Balance Sheet") and the accompanying notes therein is included
with such financial statements; such statements fairly represent the financial
condition and assets and liabilities of PMI as of the dates thereof, and all
such statements of income fairly represent the results of operations of PMI
for the periods indicated, in each case in accordance with generally accepted
accounting principles applied on a consistent basis.
4.11 NO UNDISCLOSED LIABILITIES. There has been no material change in
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operation in PMI from the date of PMI's latest balance sheet until the date of
the Closing, except as and to the extend reflected or reserved against in the
PMI Balance Sheet, PMI had no liabilities or obligations of any nature,
whether, absolute, accrued, contingent, or otherwise and whether due or to
become due. Furthermore, except as set forth in the PMI Balance Sheet,
neither PMI nor the Stockholders know of any basis for the assertion against
PMI of any such liability or obligation not fully reflected or reserved
against in the PMI Balance Sheet.
4.12 ABSENCE OF CERTAIN CHANGES. Except as reflected in the Balance
- ---- ---------------------------
Sheet, and except for legal fees incurred to Counsel for TMMI and accounting
fees to the accounting firm of Arthur Anderson, in an amount not to exceed
$25,000.00 for all the above since the date of the PMI Balance Sheet, PMI has
not:
4.12(a). Suffered any material adverse change in its financial condition,
assets, liabilities, business, or prospects; experienced any labor difficulty,
or suffered any material casualty loss;
4.12(b). Incurred any obligations or liabilities;
4.12(c). Paid, discharged, or satisfied any claim, lien, encumbrance, or
liability; except in the normal course of business;
4.12(d). Permitted or allowed any of its properties or assets to become
subjected to any lien or encumbrance;
4.12(e). Canceled any other debts or claims, or waived any rights of
substantial value, or sold or transferred any of its properties or assets;
4.12(f). Disposed of, or permitted to lapse any patent, trademark, or
copyright, or applications of license for same;
4.12(g). Made any capital expenditures or commitments in excess of Fifteen
Thousand Dollars ($15,000.00); except those related to the potential purchase
of Dux Software, Inc., and those related to the normal course of business;
4.12(h). Made any change in any method of accounting or accounting
practice; and
4.12(i). Paid, loaned, or advanced any amount to, or sold, transferred, or
leased any properties or assets to any Stockholder, any of PMI offices or
directors, any "affiliates" or "associates" of any Stockholder or of any of
PMI's officers or directors (as such terms are defined in the Rules under the
Act).
4.13 TAX RETURNS. PMI has duly filed all tax reports and return
- ---- -------------
required to be filed by it, and, except for the taxes reserved in the PMI
Balance Sheet, has duly paid all taxes and other charges due or claimed to be
due from it by federal, state or local taxing authorities to the date of the
PMI Balance Sheet. Since the date of the PMI Balance Sheet, PMI has not
incurred any tax liabilities other than in the ordinary cause of business.
There are no tax liens upon any of the properties or assets of PMI, and,
except, as reflected in the PMI Balance Sheet, there are no pending questions
relating to, or claims asserted for, taxes or assessments against PMI.
4.14 TITLE TO PROPERTIES AND ENCUMBRANCES. Except as reflected on the
- ---- -------------------------------------
PMI Balance Sheet, PMI has good, valid and marketable title to all of its
properties and assets.
4.15 FIXED ASSETS (PATENTS, TRADEMARKS, TRADE NAMES, ETC.).
- ---- ------------------------------------------------------------
4.15(a). Schedule 2 hereto called "PMI, Business Plan" and Exhibits
thereto dated June 10, 1993, contains an accurate and complete description of
all assets and properties, patents, fixed assets, trademarks, trade names,
assumed names and copyrights, and all applications therefore of PMI and
options to acquire same, and a general description of PMI's services and
know-how, presently owned or held by PMI or under which PMI owns or holds any
license;
4.15(b). PMI has the right to conduct the business set forth in section
4.08(a) and neither PMI nor any stockholder knows or has any reason to believe
that there exists any basis for any claim or claims to the company;
4.16 LITIGATION. There are no actions, proceedings, or investigations
pending or, to the best knowledge and belief of PMI and the Stockholders,
threatened by or against PMI. Neither PMI nor any of the Stockholders know or
have any reason to know of any basis for any action, proceeding, or
investigation. No other action, proceeding, or investigation has been pending
during the twelve (12) month period proceeding the date of this Agreement.
4.17 FRINGE-BENEFIT PLANS. There are no fringe-benefit plans or
arrangements of PMI, whether formal or informal and whether legally binding or
not, nor is there a commitment to establish same, except as set forth in
Schedule 3 hereto.
4.18 BANK ACCOUNTS. Schedule 4 sets forth the names and locations of
all banks in which PMI has an account or safe deposit box, and the names of
all persons authorized to draw thereon or to have access thereto.
4.19 CONTRACTS AND COMMITMENTS. Except as set forth in Schedule 5, or
individually in schedule 2, and 4 or as specifically identified in the PMI
Balance Sheet as of the date of this Agreement:
4.19(a). PMI has no contracts, commitments, arrangements, or understanding
including contracts with officers, employees, agents, consultants, sales
representatives, advisors, salesmen, distributors, or dealers that are
material to its business, operations, financial condition, or prospects.
4.19(b). PMI has not given any power of attorney to any person, firm, or
corporation for any purpose whatsoever; and
4.19(c). PMI is not in default, nor is there any basis for any valid claim
of default under any contracts made or obligations owed by it.
4.20 ORDERS, COMMITMENTS, AND RETURNS. Except as set forth in Schedule
5, PMI has no contracts for services.
4.21 LABOR DISAGREEMENTS. PMI has never experienced any labor disputes
or any material work stoppage due to labor disagreements.
4.22 CUSTOMER AND SUPPLIERS. Except as set forth in Schedule 6,
PMI has no customers or suppliers.
4.23 COMPLIANCE WITH APPLICABLE LAW. To the best of the knowledge of
PMI, PMI has duly complied, in respect of its operations, property, practices,
and all other aspects of its business, with all applicable laws, rules,
regulations, orders, ordinances, judgments, and decrees of all governmental
authorities. Neither PMI nor any Stockholder has received any notification of
any asserted present or past failure to so comply.
4.24 INVENTORY. PMI has listed its complete inventory as set forth in
Schedule 7.
4.25 IRC CONSENT. PMI has never filed a consent pursuant to Section
341(f) of the Internal Revenue Code of 1954, as amended, relating to
collapsible corporations.
4.26 DISCLOSURE. To the best knowledge of the Stockholders all facts
material to all assets, business, operation, financial condition, and
prospects of PMI are reflected in the PMI Balance Sheet in Schedule 9, or have
been disclosed herein. Each Stockholder represents that to the best of his
knowledge no representation or warranty
4.27 RESTRICTED SHARES.
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4.27(a). Each of the Stockholders acknowledges and understands that the
Restricted shares have not been registered under the Act, and must be held
indefinitely unless they are subsequently registered under the Act, and/or
applicable State securities laws, or exemption from such registration shall
exist;
4.27(b). Each of the Stockholders is aware that the Restricted Shares are,
and will be, when issued "restricted securities" as that term is defined in
Rule 144 (the "Rule") of the Rules under the Act;
4.27(c). Each of the Stockholders is fully aware of the applicable
limitations on the resale of the Restricted Shares; and
4.27(d). Each of the shareholders represent they will hold the Restricted
Shares for their own account as an investment.
5. REPRESENTATIONS AND WARRANTIES OF TMMI
5.01 REPRESENTATIONS AND WARRANTIES. TMMI represents and warrants by
approval of the transactions contemplated herein, jointly and severally, as
set forth herein in this Section 5.
5.02 AUTHORIZATION. The execution and delivery of this Agreement by
TMMI and the consummation by TMMI of the transactions contemplated hereby have
been duly authorized by TMMI's Shareholders and/or TMMI's Board of Directors,
as required by law or otherwise. Complete and correct copies of minutes, as
certified by TMMI's Secretary, of the relevant resolutions to that effect, as
adopted at the appropriate meetings of TMMI's Shareholders and the Board of
Directors of TMMI at which such authorizations took place, are being delivered
at Closing.
5.03 NO VIOLATION. Neither the execution and delivery of this
Agreement nor the consummation by TMMI of the transactions contemplated hereby
violates or conflicts with the certificate of incorporation or by-laws of TMMI
or any agreement or other restriction of any kind to which TMMI is as a party
or by which it is bound.
5.04 NO PREEMPTIVE RIGHTS. TMMI's shareholders are not, by virtue of
their ownership of the Outstanding Shares, entitled to any preemptive rights
or subscription privileges with respect to TMMI's Stock to be issued
hereunder.
5.05 VALIDITY OF THE OUTSTANDING SHARES. All of the Outstanding Shares
issued and outstanding are duly authorized, validly issued, fully paid and non
assessable.
5.06 VALID AND BINDING AGREEMENTS. This Agreement constitutes the
valid and binding agreement of TMMI, enforceable in accordance with its terms,
and neither the execution and delivery of this Agreement nor the consummation
of the transactions contemplated hereby (a) violated or will violate by
statute or law, or any rule, regulation, or order of any court or governmental
authority, or (b) violates or will violate, or conflicts with or will conflict
with, or constitutes a default under or will constitute a default under, any
contract, commitment, agreement, understanding, agreement, or restriction of
any kind to which TMMI is bound.
5.07 THE PUBLIC COMPANY - TECHNOLOGY MANAGEMENT AND MARKETING, INC.
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5.07(a). TMMI is a corporation duly organized on December 5, 1985 validly
existing, and in good standing under the laws of the state of Colorado, and
has the corporate power and authority to carry on its business and to enter
into and perform this Agreement. Notwithstanding, TMMI is and has been from
September 30, 1990, dormant, and without any corporate activity;
5.07(b). The copies of the articles of incorporation of TMMI, all
amendments thereto, as certified by the Secretary of the State of Colorado,
and of the by-laws of TMMI, as amended to date, as certified by its Secretary,
which are being delivered to Stockholders for examination and being returned
to TMMI at the Closing, are complete and correct, and are in contained in its
minute book which is being delivered to the Stockholders for examination and
being returned to TMMI at the Closing, and no corporate meetings or minutes
from any such meetings have been held or prepared, as the case may be, since
such examination by TMMI, that have not also been furnished to the
Stockholders; and
5.07(c). TMMI is not licensed or qualified to do business as a foreign
corporation in any jurisdiction, and is not required to be so licensed or
qualified.
5.08 CAPITALIZATION OF TMMI. TMMI's Stock consists solely of Fifty
Million (50,000,000) authorized shares of common stock, and $.001 par value,
and except for the Outstanding Shares, all of which are duly authorized,
validly issued and outstanding, fully paid, and nonassessable. Further, there
are no options, warrants or rights to purchase or otherwise acquire any
securities of TMMI.
5.09 SUBSIDIARIES AND AFFILIATES. TMMI owns no capital stock or other
securities of any corporation and has no direct or indirect interest, and,
since its incorporation, has had no such interest in any business.
5.10 NO VIOLATION OF AGREEMENTS. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated hereby
violated or will violate, or conflicts with or will conflict with, or
constitutes a default under the articles of incorporation or by-laws, as
amended, of TMMI of any contract, commitment, agreement, understanding,
arrangement, or restriction of any kind to which TMMI is bound.
5.11 FINANCIAL CONDITION AND STATEMENTS OF TMMI. TMMI has delivered to
the Stockholders unaudited balance sheets of TMMI as of September, 1990 and
1989 and related statements of income from inception (April 3, 1990 through
September, 1990) the "TMMI's Balance Sheet", and related interim statement of
income for the period then ended, audited by Ernst & Young, CPA, whose reports
thereon are included with such financial condition and assets and liabilities
of TMMI as of the date thereof, and all such statements of income fairly
present the result of operations (non-active) of TMMI for the periods
indicated, in each case in accordance with generally accepted accounting
principles applied on a consistent basis.
5.12 NO UNDISCLOSED LIABILITIES. There has been no operation by TMMI from
the date of incorporation to the date of Closing, except as, and to, the
extent reflected or reserved against in TMMI's Balance Sheet, TMMI has no
liabilities or obligations of any nature, whether absolute, accrued,
contingent, or otherwise and whether due or to become due. Furthermore,
except as set forth in TMMI's Balance Sheet, TMMI does not know of any basis
for the assertion against TMMI f any such obligation not fully reflected or
reserved against in TMMI's Balance Sheet.
5.13 ABSENCE OF CERTAIN CHANGES. Except for approximately five thousand
dollars ($5,000.00) for miscellaneous expenses, since the date of TMMI's
Balance Sheet, TMMI has remained dormant and has not:
5.13(a). Suffered any material adverse change in its financial condition,
assets, liabilities, business, or prospects, experienced any labor difficulty,
or suffered any material casualty loss;
5.13(b). Incurred any obligations or liabilities;
5.13(c). Paid, discharged, or satisfied any claim, lien, encumbrance, or
liability;
5.13(d). Permitted or allowed any of its properties or assets to be
subjected to any lien, encumbrance;
5.13(e). Canceled any other debt or claims, or waived any rights of
substantial value, or sold or transferred any of its properties or assets;
5.13(f). Disposed of, or permitted to lapse any patent, trademark or
copyright, or applications or license for same;
5.13(g). Granted any compensation of employees;
5.13(h). Made any capital expenditures or commitments in excess of Five
Thousand Dollars ($5,000).
5.13(i). Made any change in any method of accounting or accounting
practices;
5.13(j). Paid, loaned, or advanced any amount to, or sold, transferred, or
leased any properties or assets to, or entered into any agreement,
arrangement, or transaction with any of TMMI's Shareholders, or officers of
directors of TMMI and any "affiliates" or "associates" of the same - as such
terms are defined in the Act - or any business or entity in which any such
person has any direct or indirect interest; and
5.13(k). Declared or agreed to pay or paid any dividend on, or declared or
made any distribution on other securities.
5.14 TAX RETURNS. TMMI, to the best of its knowledge, has duly filed
all tax reports and returns required to be field by it and has, except for
those reserved in TMMI's Balance Sheet, duly paid all taxes and other charges
due or claimed to be due from it by federal, state, or local taxing
authorities to the date of TMMI's Balance Sheet TMMI has not incurred any tax
liabilities. There are no tax liens upon any of the properties or assets of
TMMI (other than liens for current taxes not yet due) except as reflected in
TMMI's Balance Sheet, and there are no pending questions relating to, or
claims asserted for taxes or assessments against TMMI.
5.15 TITLE TO PROPERTIES; ENCUMBRANCES. Except as reflected on TMMI's
Balance Sheet, TMMI has good valid and marketable title to all its properties
and assets.
5.16 FIXED ASSETS, PATENTS, TRADEMARKS, TRADE NAMES AND OTHER INTANGIBLE
ASSETS. There are no fixed assets, patents, trademarks, trade names,
assumed names or copyrights presently owned or held by TMMI.
5.17 LITIGATION. There are no actions, proceedings, or investigations
pending or to the best knowledge and belief of TMMI threatened by or against
TMMI; TMMI does not know or have any reason to know of any basis for such
actions, proceedings, or investigations have been pending during the twelve
(12) month period preceding the date to this Agreement. To the best of the
knowledge of TMMI, there is no event or condition of any kind or character
pertaining to the business or assets of TMMI that may materially and adversely
affect such business or assets.
5.18 INSURANCE. There are no insurance for fire, liability, workmen's
compensation, Products liability, or other forms of insurance in effect with
respect to TMMI.
5.19 FRINGE-BENEFIT PLANS. There are no fringe-benefit plans or
arrangements of TMMI, whether formal or informal and whether legally binding
or not, nor is there a commitment to establish same. TMMI has no commitment,
whether formal or informal and whether legally binding or not, to establish
any plan or arrangement, or modify, or change any existing plan or
arrangement.
5.20 BANK ACCOUNTS. TMMI has been dormant and therefore no longer
maintains any bank account.
5.21 CONTRACTS AND COMMITMENTS.
- ---- ----------------------------
5.21(a). TMMI has no contracts, commitments, arrangements, or
understanding that are material to its business, operations, financial
condition, or prospects, no accounts receivable, no outstanding contracts with
officers, employees, agents, consultants, advisors, salesmen, sales
representatives, distributors or dealers.
5.21(b). TMMI has not given any power of attorney to any person, firm or
corporation for any purpose whatsoever.
5.21(c). TMMI is not in default nor is there any basis for any valid claim
of default under any contracts made or obligations owed by it.
5.21(d). TMMI is not restricted or purported to be restricted by agreement
or in any other manner from carrying on its business anywhere in the world.
5.22 ORDERS AND COMMITMENTS. As of the date of this Agreement, there are
no orders for the sale of merchandise of raw materials and supplies entered
into by TMMI.
5.23 LABOR DISAGREEMENTS. TMMI has never experienced any labor disputes
or any material work stoppage due to labor disagreements.
5.24 IRC CONSENT. TMMI has never filed a consent pursuant to Section
341(f) of the Internal Revenue Code of 1954, as amended, relating to
collapsible corporation.
5.25 COMPLIANCE WITH APPLICABLE LAW. TMMI has not received any
notification of any asserted present or past failure to comply with any
federal, state, or securities law.
5.26 DISCLOSURE. All facts material to all assets, business, operations,
financial condition, and prospects of TMMI are reflected in TMMI's Balance
Sheet, or have been disclosed herein. To the best of TMMI's knowledge, no
representation or warranty contained in this Section 5.28 and no statement
contained in any certificate, schedule, list, or other writing furnished to
the Stockholders pursuant to the provisions of this Agreement, contains any
untrue statement of a material fact or omits to statements therein not
misleading.
6. COMFORT LETTERS
6.01 TMMI'S REPRESENTATION. At the closing of this transaction, TMMI will
provide a letter from its President, dated not more than two (2) days prior to
the date of Closing, stating that: (i) TMMI is a public shell; (ii) has been
dormant with no corporate activity since September 30, 1990 and that TMMI has
no outstanding tax or other liability; (iii) has no known liabilities and no
assets since its last 8-K was filed on May 7, 1991, and subsequent to selling
all of its assets and liabilities on April 21, 1990; and (iv) that during the
period from the dat of TMMI's Balance Sheet to a specific date not more than
five (5) days prior to the date of Closing there has been: (a) no change in
the authorized or issued capital stock, apart from those transactions relating
to TMMI's acquisition of PMI; (b) no options or warrants issued or
outstanding; (c) no increase in the debt or TMMI; or (d) no material adverse
change in the results of operations, net worth; or financial position of TMMI.
6.02 PMI REPRESENTATION. At the closing PMI will provide a letter from
its President, dated the date of the Closing, to the effect that : (i) the
Company is in good standing as stated in Section 4.01 hereof; (ii) the PMI
Stockholders have power and authority to enter into and perform this
Agreement; (iii) neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby violates or will violate,
or conflicts with or will conflict with, or constitutes a default under any
term or provision or any agreement of which PMI is specifically aware and to
which the Stockholders are a party or otherwise bound; and (iv) the
corporation has not engaged in any other corporate activity other than its
business. Further, the President will provide a letter dated as of the date
of closing from the his stockholders affirming the representation and
warranties in Section 4.
7. SURVIVAL OR REPRESENTATIONS; INDEMNIFICATION, SET-OFF, TERMINATION
7.01 SURVIVAL OF REPRESENTATIONS. All representations, warranties, and
agreement made by any party in this Agreement or pursuant hereto shall survive
the Closing hereunder for a period of one year.
7.02 STATEMENTS AS REPRESENTATIONS. All statements contained in any
certificate, schedule, list, document, or other writing delivered pursuant
hereto or in connection with the transaction contemplated hereby shall be
deemed representations and warranties within the meaning of Section 7.01
hereof.
7.03 BREACH OF REPRESENTATIONS OR WARRANTIES. Notwithstanding anything to
the contrary contained herein, if any representation or warranty made in
Section 4 or 5 herein shall prove to have been false or incorrect in any
material respect ("breached") such breached may be cured or corrected within
thirty (30) days after written notice thereof and shall have been given (if a
breach of Section 4) to Stockholders or (if a breach of Section 5) to TMMI, by
written notice to the former President of TMMI, Jerry Richmond and by
advertising in the public notice sections of the Denver Post and L.A. Times.
8. PROVISIONS REGARDING RESTRICTED SHARES
8.01 REPRESENTATIONS BY STOCKHOLDERS. Each Stockholder represents and
warrants to TMMI and TMMI's Shareholders that it is his present intention to
acquire the Restricted Shares for investment and not with a view towards the
distribution or resale thereof, and is confirming such intention by letter to
be delivered at the Closing.
8.02 AGREEMENTS BY THE STOCKHOLDERS. Each Stockholder agrees that he
will not offer, transfer, assign, mortgage, pledge, or otherwise dispose of,
or encumber any of the Restricted Shares delivered to him pursuant to this
Agreement, (except as a part of a private placement or an assignment for
services rendered, in which event the assignees shall also be subject to the
restrictions hereof.) (a) if such action would prevent TMMI from accounting
for the acquisition of the Restricted shares as a "pooling of interests" and
(b) unless (i) in the opinion of counsel to TMMI or in the opinion of counsel
to TMMI or in the opinion of the Division of Corporate Finance (the
"Commission") expressed in a "no-action" letter (which letter and the request
therefor shall be in form and substance satisfactory to counsel for TMMI),
registration of the Restricted Shares under the Act, and the rules and
regulations of the Commission thereunder, as then in effect, is not required
in connection with such transaction; (ii) sale of the Restricted Shares is
permissible under Rule 144 of the Commission under the Act, in which event the
Stockholder shall furnish TMMI with an opinion of counsel for TMMI and which
opinion shall be in form and substance reasonable satisfactory to TMMI) to the
effect that the sale of the Restricted Shares proposed to be sold is
permissible under Rule 144, provided that TMMI agrees to make such
representations as may be reasonable requested by such counsel and that TMMI
can accurately make concerning TMMI's qualification under Rule 144(c); or
(iii) a registration statement under the Act is then in effect with respect to
the Restricted Shares and the purchaser or transferee has been furnished with
a prospectus meeting the requirements of Section 10 of the Act.
8.03 LEGEND. Each Stockholder agrees that TMMI may endorse on any
certificate for the Restricted Shares to be delivered to or on behalf of the
Stockholder pursuant to this Agreement an appropriate legend referring to the
provisions of Section 8.01 and 8.02 hereof, and that TMMI may instruct its
transfer agents not to transfer any the Restricted Shares unless advised by
TMMI that such provisions have been complied with, which advise shall not be
unreasonable withheld.
9. MISCELLANEOUS
9.01 COMMISSIONS. Each of the parties hereto represents and warrants
that there are no claims for brokerage commissions or finders' fees in
connection with the transactions contemplated by this Agreement. Each of the
parties hereto will pay or discharge, and will indemnify and hold harmless the
others from and against, all claims for brokerage commissions or finder's fees
incurred by reason of any such action taken by such indemnifying party.
9.02 PARTIES IN INTEREST. Except as otherwise expressly provide herein,
all the terms and provisions of this Agreement shall be binding upon, shall
inure to the benefit of, and shall be enforceable by the respectable heirs,
beneficiaries, personal and legal representatives, successors, and assigns of
the parties hereto.
9.03 ENTIRE AGREEMENT; AMENDMENTS. This agreement including the
exhibits, schedules, lists, and other documents and writings, referred to
herein and delivered pursuant hereto, which from a part hereof, contains the
entire understanding of the parties with respect to this subject matters.
There are no restrictions, agreements, promises, warranties, covenants, or
undertaking other than those expressly set forth herein or therein. This
Agreement supersedes all prior agreements and undertakings between the parties
or their respective successors or assigns. Any condition to a party's
obligations hereunder may be waived by such party in writing.
9.04 HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretations of this Agreement.
9.05 NOTICES. All notices, requests, demands, and other communications
hereunder ("Notices") shall be in writing and shall be deemed to have been
duly given if delivered or mailed (registered or certified mail, postage
prepaid return receipt requested) or by telex or telefax, as follows:
If to TMMI:
Technology Management and Marketing, Inc.
Mr. Jerry Richmond
11809 Rydalwater Lane
Austin, Texas 78754
If to PMI:
Pacific Micro Electronics, Inc.
Dr. Wun Chiou, Sr.
201 San Antonio Circle, Suite 250
Mountain View, California 94940
or such other address as any party may have finished to TMMI in writing
in the same manner, except that notice of change of address shall only be
effective upon receipt. All notices shall be deemed received on the date of
delivery or, if mailed, on the date appearing on the return receipt therefore.
9.06 LAW GOVERNING. This Agreement shall be governed by and construed
and enforced in accordance with, the laws of the State of Colorado, without
regard to its conflict-of-laws rules.
9.07 COUNTERPARTS. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
Stockholders and by the Duly authorized officers of TMMI on the date first
above written:
TECHNOLOGY MANAGEMENT AND
MARKETING, INC. PACIFIC MICRO ELECTRONICS, INC.
by: /s/ Jerry Richmond by: /s/ Wun C. Chiou
President President
Date Feb. 23, 1996 Date February 27, 1996
Stockholders:
by: /s/ Wun. C. Chiou
Date: February 27, 1996
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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