UNITED STATES
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) June 28, 1996
ASSOCIATED TECHNOLOGIES
(Exact name of registrant as specified in its character)
NEVADA 33-55254-45 87-0485306
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
1204 THIRD AVENUE, SUITE 172,
NEW YORK, NY 10021
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 988 0394
<PAGE>
ITEM 2. Acquisition of Assets
On June 28, 1996, an agreement was entered into between Associated
Technologies ("the Company") and Beleggingsmaatschappij Groeigarant A.V.V.
("BLM"). Pursuant to the agreement, and in consideration of the issuance of
80,000 authorised but unissued shares, the Company acquired 100% of the issued
and outstanding stock of Ogenic Technologies Pty Limited.
Further, in consideration of the issuance of 100,000 authorised but
unissued shares of the Company's common stock, the Company acquired debts owing
by Ogenic Technologies to Chancellor Investments A.V.V. (a related party)
totalling approximately $US3.2 million. The Company subsequently converted the
debt to additional shares in Ogenic Technologies.
Ogenic Technologies is an Australian based corporation, originally formed
in 1975, specialising in the building of turnkey radio broadcast equipment and
componentry.
ITEM 7. Financial Statements and Exhibits
It is impracticable to file the Financial Statements concurrently with the
filing of this report. The Company expects to file the Financial Statements
within the required time.
Exhibits:
Agreement between the Company and Beleggingsmaatschappij Groeigarant A.V.V.
dated June 28, 1996.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorised.
ASSOCIATED TECHNOLOGIES
By: s\- Neil Alan Green
Neil Alan Green, President
Dated: July 12, 1996
<PAGE>
ACQUISITION / EXCHANGE AGREEMENT
THIS ACQUISITION / EXCHANGE AGREEMENT (this "Agreement"), is entered into this
28th day of June,1996.
BETWEEN:
ASSOCIATED TECHNOLOGIES, a Nevada corporation of 1204 Third Avenue, Suite 172,
New York NY 10021 USA ("Associated");
AND:
BELEGGINGSMAATSCHAPPIJ GROEIGARANT A.V.V., (the shareholder of OGENIC
TECHNOLOGIES PTY LIMITED) a corporation incorporated in Aruba, of Dominicanessen
straat 22, Oranjestad, Aruba ("Exchangor")
Premises
A. Associated is a corporation existing under the laws of the state of Nevada,
having been incorporated on August 9, 1990.
B. Ogenic Technologies Pty Limited is a corporation existing under the laws of
Australia having been incorporated on October 7, 1975 ("OTP").
C. BELEGGINGSMAATSCHAPPIJ GROEIGARANTA.V.V., the shareholder of OTP owns the
entire issued and paid up capital of OTP.
D. The parties have negotiated a transaction whereby all of the shares of OTP
owned by Exchangor will be exchanged for similar shares of common stock of
Associated based on the terms and conditions of this Agreement.
E. The parties have reached agreement as to the business terms of the
transaction and desire to set forth in this Agreement the details thereof.
Agreement
NOW, THEREFORE, on the stated premises, which are incorporated herein by
reference, and for and in consideration of the mutual covenants and agreements
hereinafter set forth, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, it is hereby agreed as follows:
<PAGE>
ARTICLE 1
Acquisition/Exchange
Section 1.01 The Acquisition/Exchange.
At Closing, as herein defined, and subject to all the terms, covenants, and
conditions set forth in this Agreement, Associated hereby agrees to issue and
deliver to Exchangor a certificate or certificates representing 80,000 shares of
Associated Exchanged Stock, and Exchangor agrees to assign, transfer, and
deliver to Associated, free and clear of any and all liens, pledges,
encumbrances, charges, restrictions, or claims of any kind, nature, or
description, certificates representing shares of the issued and outstanding
capital stock of OTP held by Exchangor, constituting 100% of the issued and
outstanding voting capital stock of OTP prior to the Closing, so that 8,383,727
shares of OTP shall be exchanged for 80,000 shares of Associated Exchanged
Stock, as herein defined.
Section 1.02 Adjustments to Exchange Ratio.
For all relevant purposes of the Acquisition/Exchange of OTP Stock, the number
of shares of Associated Exchanged Stock to be issued and delivered pursuant to
this Agreement shall be approximately adjusted to take into account any issue of
Associated Exchanged Stock which may occur between the date of the execution of
this Agreement and the date of delivery of such shares.
Section 1.03 Closing.
The closing ("Closing") of the transactions contemplated by this Agreement shall
be on a date and at such time and place as the parties may agree ("Closing
Date"), within the thirty (30) day period commencing with the last to occur of
the following;
(a) The final date prescribed by any state or federal regulatory agency
pursuant to any state or federal law, rule, or regulation prior to which
the transactions may not be effectuated; and
(b) The satisfaction of all other conditions precedent to Closing.
Section 1.04 Closing Events
(a) Associated Deliveries. Subject to fulfilment or waiver of the conditions
set forth in Article VI, Associated shall deliver to Exchangor at Closing
all the following:
(i) Certificate of good standing from the appropriate authorities, issued
as of a date within sixty days prior to the Closing Date, certifying
that Associated is in good standing as a corporation in the state of
Nevada;
(ii) Incumbency and specimen signature certificates dated the Closing Date
with respect to the officers of Associated executing this Agreement
and any other document delivered pursuant hereto on behalf of
Associated;
<PAGE>
(iii)Copies of the resolutions of Associated's board of directors
authorising the execution and performance of this Agreement and the
contemplated transactions, certified by the respective secretary or an
assistant secretary of Associated as of the Closing Date;
(iv) The certificate contemplated by Section 5.01, duly executed by a duly
authorised officer of Associated;
(v) The certificate contemplated by Section 5.02, dated the Closing Date,
signed by the chief executive officer and principal accounting and
financial officer of Associated; and in addition to the above
deliveries, Associated shall take all steps and actions as Exchangor
may reasonably request or as may otherwise be necessary to consummate
the transactions contemplated hereby.
(b) Exchangor's Deliveries. Subject to fulfilment or waiver of the conditions
set forth in Article V, Exchangor shall deliver to Associated at Closing
the certificate contemplated by Section 6-02, executed by a duly authorised
officer of OTP.
In addition to the above deliveries, Exchangor shall take all steps and actions
as Associated may reasonably request or as may otherwise be necessary to
consummate the transactions contemplated hereby.
Section 1.05 Termination
(a) his Agreement may be terminated by the board of directors of either
Associated or Exchangor at any time prior to the Effective Date if:
(i) There shall be any actual or threatened action or proceeding
before any court or any governmental body which shall seek to
restrain, prohibit, or invalidate the transactions contemplated
by this Agreement and which, in the judgement of such board of
directors, made in good faith and based upon the advice of its
legal counsel, makes it inadvisable to proceed with the merger
and consolidation contemplated by this Agreement;
(ii) Any of the transactions contemplated hereby are disapproved by
any regulatory authority whose approval is required to consummate
such transactions or in the judgement of such board of directors,
made in good faith and based on the advise of counsel, there is
substantial likelihood that any such approval will not be
obtained or will be obtained only on a condition or conditions
which would be unduly burdensome, making it inadvisable to
proceed with the merger and exchange;
In the event of termination pursuant to this paragraph (a) of Section 1.05, no
obligation, right, or liability shall arise hereunder, and each party shall bear
all of the expenses incurred by it in connection with the negotiation,
preparation, and execution of this Agreement and the transactions contemplated
hereby.
<PAGE>
(b) This Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of Exchangor, if Associated shall fail to
comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties
of Associated contained herein shall be inaccurate in any material respect.
In the event of termination pursuant to this paragraph (b) of this Section
1.05, no obligation, right, remedy, or liability shall arise hereunder.
Associated and Exchangor shall each bear their own costs incurred in
connection with the negotiation, preparation, and execution of this
Agreement and the transactions contemplated hereby.
(c) This Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of Associated if Exchangor shall fail to
comply in any material respect with any of its covenants or agreements
contained in this Agreement of if any of the representations or warranties
of Exchangor contained herein shall be inaccurate in any material respect.
In the event of termination pursuant to this paragraph (c) of this Section
1.05, no obligation, right, remedy, or liability shall arise hereunder.
Associated and Exchangor shall each bear their own costs incurred in
connection with the negotiation, preparation, and execution of this
Agreement and the transactions contemplated hereby.
ARTICLE II
Representations, Covenants, and
Warranties of Associated
As an inducement to, and to obtain the reliance of, Exchangor, Associated
represents and warrants as follows:
Section 2.01 Organisation
(a) Associated is, and will be on the Closing Date, a corporation duly
organised, validly existing, and in good standing under the laws of the
state of Nevada and has the corporate power and is and will be duly
authorised, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and order of public authorities to own all of its
properties and assets and to carry on its business in all material respects
as it is now being conducted, and there are no other jurisdictions in which
it is not so qualified in which the character and location of the assets
owned by it or the nature of the material business transacted by it
requires qualification, except where failure to do so would not have a
material adverse effect on its business, operations, properties, assets, or
condition. The execution and delivery of this Agreement does not, and the
consummation of the transaction contemplated by this Agreement in
accordance with the terms hereof will not, violate any provision of
Associated's articles of incorporation or bylaws, or other agreement to
which it is a party or by which it is bound.
Section 2.02 Approval of Agreements
Associated has full power, authority, and legal right and has taken, or will
take, all action required by law, its articles of incorporation, bylaws, and
otherwise to execute and deliver this Agreement and to consummate the
transactions herein contemplated. The board of directors of Associated has
<PAGE>
authorised and approved the execution, delivery, and performance of this
Agreement and the transactions contemplated hereby. Included in Schedule 2.02 is
a certified copy of a resolution duly adopted by the board of directors of
Associated evidencing such approval. No approval of this transaction by the
shareholders of Associated is required. This Agreement has been duly authorised,
executed, and delivered by Associated and is the legal, valid and binding
obligation of Associated, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, or other laws
affecting enforcement or creditors' rights generally and by general principles
of equity.
Section 2.03 Capitalisation
The authorised capitalisation of Associated consists of 25,000,000 shares of
Common stock, par value $0.001 per share, 1,020,000 shares of which are issued
and outstanding, (collectively referred to as "Associated Stock"). All issued
and outstanding shares of Associated are legally issued, fully paid, and
non-assessable and not issued in violation of the pre-emptive or other right of
any person. There are no dividends or other amounts due or payable with respect
to any of the shares of capital stock of Associated.
Section 2.04 Subsidiaries and Predecessors
Associated does not own, beneficially or of record, any equity securities in any
other entity. Associated has no "predecessor," as that term is defined under
generally accepted accounting principles or Regulation S-X promulgated by the
Securities and Exchange commission (the "SEC").
Section 2.05 Financial Statements
(a) Included in the information referred to in Section 2.06 are the audited
balance sheets of Associated as of December 31, 1995, and 1994, and the
statements of operations, stockholders' equity and cash flows for the years
ended December 31, 1995, 1994, and 1993, including the notes thereto and
the accompanying report of Smith and Company, Certified Public Accountants.
(b) All such audited and unaudited financial statements have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved as explained in the notes to such
financial statements. The Associated balance sheets present fairly, in all
material respects, as of their respective dates, the financial position of
Associated. Associated did not have, as of the date of any such balance
sheets, except as and to the extent reflected or reserved against therein,
any liabilities or obligations (absolute or contingent) which should be
reflected in a balance sheet or the notes thereto prepared in accordance
with generally accepted accounting principles under which they were
prepared, and all assets reflected therein present fairly the assets of
Associated in accordance with generally accepted accounting principals
under which they were prepared.
(c) All such financial statements have been presented in accordance with the
requirements of Regulation S-X promulgated by the SEC regarding the form of
content of and requirements for financial statements to be filed with the
SEC.
<PAGE>
(d) The books and records, financial and otherwise, of Associated are in all
material respects complete and correct and have been maintained in
accordance with sound business and bookkeeping practices so as to
accurately and fairly reflect, in reasonable detail, the transactions and
dispositions of the assets of Associated. Associated has maintained a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions have been and are executed in accordance
with management's general or specific authorisation; (ii) transactions are
recorded as necessary to permit the preparation of financial statements in
conformity with generally accepted accounting principles or any other
criteria applicable to such statements and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorisation; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals, and appropriate action is taken with respect to any
differences.
(e) Associated has filed or will have filed as of the Closing Date all tax
returns required to be filed by them from inception to the Closing Date.
All such returns and reports are accurate and correct in all material
respects. Associated does not have any liabilities with respect to the
payment of any federal, state, county, local, or other taxes (including any
deficiencies, interest, or penalties) accrued for or applicable to the
period ended on the date of the most recent audited balance sheet of
Associated, except to the extent reflected on such balance sheet and
adequately provided for, and all such dates and years and periods prior
thereto and for which Associated may at said date have been liable in its
own right or as transferee of the assets of, or as successor to, any other
corporation or entity, except for taxes accrued but not yet due and
payable, and no deficiency assessment or proposed adjustment of any such
tax return is pending, proposed or contemplated. Proper and accurate
amounts of taxes have been withheld by or on behalf of Associated with
respect to all compensation paid to employees of Associated for all periods
ending on or before the date hereof, and all deposits required with respect
to compensation paid to such employees have been made, in complete
compliance with the provisions of all applicable federal, state, and local
tax and other laws. None of such income tax returns has been examined or is
currently being examined by the Internal Revenue Service, and no deficiency
assessment or proposed adjustment of any such return is pending, proposed
or contemplated. Associated has not made any election pursuant to the
provisions of any applicable tax laws (other than elections that relate
solely to methods of accounting, depreciation, or amortisation) that would
have a material adverse affect on Associated, its financial condition, its
business as presently conducted or proposed to be conducted, or any of its
respective properties or material assets. There are no tax liens upon any
of the assets of Associated. There are no outstanding agreements or waivers
extending the statutory period of limitation applicable to any tax return
of Associated.
Section 2.06 Information
The information concerning Associated set forth in this Agreement; in the
Schedules delivered by Associated pursuant hereto were, as of their respective
dates, complete and accurate in all material respects and did not contain any
untrue statement of a material fact or omit to state a material fact required to
make the statements made, in light of the circumstances under which they were
made,
<PAGE>
not misleading. Associated shall cause the schedules delivered by it pursuant
hereto and the instruments and data delivered to Exchangor hereunder to be
updated after the date hereof up to and including the Closing Date.
Section 2.07 Absence of Certain Changes or Events
------------------------------------
Except as set forth in this Agreement, since the date of the most recent
Associated balance sheet described in Section 2.05 and included in the
information referred to in Section 2.06:
(a) There has not been (i) any material adverse change in the business,
operations, properties, level of inventory, assets, or condition of
Associated or (ii) any damage, destruction, or loss to Associated (whether
or not covered by insurance) materially and adversely affecting the
business, operations, properties, assets, or conditions of Associated;
(b) Associated has not (i) amended its articles or incorporation or bylaws;
(ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets or any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the
aggregate are extraordinary or material considering the business of
Associated; (iv) made any material change in the method of management,
operation, or accounting; (v) entered into any other material transactions;
(vi) made any accrual or arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination pay to any present
or former officer or employee; (vii) increased the rate of compensation
payable or to become payable by it to any of their officers or directors or
any of its employees whose monthly compensation exceeds $1000; or (viii)
made any increase in any profit-sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan, payment, or
arrangement made to, for, or with their officers, directors, or employees;
(c) Associated has not (i) granted or agreed to grant any options, warrants, or
other rights for their stocks, bonds, or other corporate securities calling
for the issuance thereof other than those currently outstanding, if any;
(ii) borrowed or agreed to borrow any funds or incurred, or become subject
to, any material obligation or liability absolute or contingent) except
liabilities incurred in the ordinary course of business; (iii) paid any
material obligation or liability (absolute or contingent) other than
current liabilities reflected in or shown on the most recent Associated
balance sheet and current liabilities incurred since that date in the
ordinary course of business; (iv) sold or transferred, or agreed to sell or
transfer, any of its assets, properties, or rights (except assets,
properties, or rights not used or useful in its business which, in the
aggregate have a value of less than $5000 or cancelled, or agreed to
cancel, any debts or claims (except debts and claims which in the aggregate
are of a value of less than $5000); (v) made or permitted any amendment or
termination of any contract, agreement, or license to which it is a party
if such amendment or termination is material, considering the business of
Associated; or (vi) issued, delivered, or agreed to issue or deliver any
stock, bonds, or other corporate securities including debentures (whether
authorised and unissued or held as treasury stock); and
<PAGE>
(d) To the best knowledge of Associated, it has not become subject to any law
or regulation which materially and adversely affects, or in the future may
adversely affect, the business, operations, properties, assets, or
condition of Associated.
Section 2.08 Title and Related Matters
Except as disclosed in the most recent audited Associated balance sheet and the
notes thereto, Associated has good and marketable title to all of its
properties, inventory, interests in properties, and assets, which are reflected
in the most recent Associated balance sheet or acquired after that date (except
those sold or otherwise disposed of since such date in the ordinary course of
business), free and clear of all mortgages, security interests, royalties,
liens, pledges, charges, or encumbrances, except (i) statutory liens or claims
not yet delinquent; and (ii) such imperfections of title and easements as do
not, and will not, materially detract from, or interfere with, the present or
proposed use of the properties subject thereto or affected thereby or otherwise
materially impair present business operations on such properties.
ARTICLE III
Representations, Covenants, and
Warranties of Exchangor on June 28, 1996
As an inducement to, and to obtain the reliance of, Associated, Exchangor
represents and warrants as follows:
Section 3.01 Organisation
OTP is and will be on the Closing Date a corporation duly organised, validly
existing, and in good standing under the laws of Australia and has the corporate
power and is and will be duly authorised, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, and there are no other
jurisdictions in which it is not so qualified in which the character and
location of the assets owned by it or the material business transacted by it
requires qualification, except where failure to do so would not have a material
adverse effect on the business, operations, properties, assets, or condition of
OTP. The execution and delivery of this Agreement does not, and the consummation
of the transactions contemplated by this Agreement in accordance with the terms
hereof will not, violate any provision of OTP's articles of incorporation or
bylaws or other agreement to which it is a party or by which it is bound.
Section 3.02 Capitalisation
The authorised capitalisation of OTP consists of 90,000,000 shares of common
stock, par value $.50 ("OTP Stock"), of which 8,383,727 shares are issued and
outstanding and 10,000,000 non cumulative, non voting, convertible, redeemable,
preference shares of which none have been issued. All issued and outstanding
shares of OTP are legally issued, fully paid, and nonassessable and not issued
in violation of the pre-emptive or other right of any person. There are no
dividends or other amounts due or payable with respect to any of the shares of
capital stock of OTP.
<PAGE>
Section 3.03 Subsidiaries or Predecessors
There are no subsidiaries or predecessors as those terms are defined under
generally accepted accounting principles or regulation S-X promulgated by the
SEC, other than Ogenic Industries.
Section 3.04 Financial Statements
(a) Included in Schedule 3.05 are the audited balance sheets of OTP as of 31
December, 1995, and the related statements of operations, stockholders'
equity, and cash flows for the year then ended including the notes thereto
and the accompanying report of Stanton and Partners, Chartered Accountants.
(b) All such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved. The balance sheets of OTP present fairly, as of their
respective dates, the financial position of OTP. OTP did not have, as of
the date of any such balance sheets, except as and to the extent reflected
or reserved against therein, any liabilities or obligations (absolute or
contingent) which should be reflected in a balance sheet or the notes
thereto prepared in accordance with generally accepted accounting
principles, and all assets reflected therein present fairly the assets of
OTP, in accordance with generally accepted accounting principles. The
statements of operations, stockholders' equity, and cash flows present
fairly the financial position and results of operations of OTP as of their
respective dates and for the respective periods covered thereby. OTP
maintains and will continue to maintain a standard system of accounting
established and maintained in a manner permitting the preparation of
financial statements in accordance with generally accepted accounting
principles.
(c) All such financial statements have been presented in accordance with the
requirements of Regulation S-X promulgated by the SEC regarding the form
and content of and requirements for financial statements to be filed with
the SEC.
(d) The books and records, financial and otherwise, of OTP are in all material
respects complete and correct and have been maintained in accordance with
sound business and bookkeeping practices so as to accurately and fairly
reflect, in reasonable detail, the transactions and dispositions of the
assets of OTP. OTP has maintained a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions have been
and are executed in accordance with management's general or specific
authorisation; (ii) transactions are recorded as necessary to permit the
preparation of financial statements in conformity with generally accepted
accounting principles or any other criteria applicable to such statements
and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorisation; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals, and appropriate action is
taken with respect to any differences.
(e) OTP has filed or will have filed as of the Closing Date all tax returns
required to be filed by it from inception to the Closing Date. All such
returns and reports are accurate and correct in all material respects. OTP
has no liabilities with respect to the payment of any federal, sate,
county, local, or other taxes (including any deficiencies, interest or
penalties) accrued for or applicable to the period ended on the date of the
most recent unaudited balance sheet of OTP except to the extent reflected
on such balance sheet and adequately provided for, and all such dates and
years and periods prior thereto and for which OTP may at said date have
been liable in its own right or as transferee of the assets of, or as
successor to, any other corporation or entity, except for taxes accrued but
not yet due and payable, and no deficiency assessment or proposed
adjustment of any such tax return is pending, proposed or contemplated.
Proper and accurate amounts of taxes have been withheld by or on behalf of
OTP with respect to all compensation paid to employees of OTP for all
periods ending on or before the date hereof, and all deposits required with
respect to compensation paid to such employees have been made, in complete
compliance with the provisions of all applicable federal, state, and local
tax and other laws. None of such income tax returns has been examined or is
currently being examined by the Australian Tax Department, and no
deficiency assessment or proposed adjustment of any such return is pending,
proposed, or contemplated. OTP has not made any election pursuant to the
provisions of any applicable tax laws (other than elections that relate
solely to methods of accounting, depreciation, or amortisation) that would
have a material adverse affect on OTP, its financial condition, its
business as presently conducted or proposed to be conducted, or any of its
properties or material assets. There are no tax liens upon any of the
assets of OTP. There are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any tax return of OTP.
<PAGE>
Section 3.05 Information
The information concerning OTP set forth in this Agreement and in the schedules
delivered by OTP pursuant hereto is complete and accurate in all material
respects and does not contain any untrue statement of a material fact or omit to
state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. OTP shall cause the
schedules delivered by OTP pursuant hereto and the instruments and data
delivered to Associated hereunder to be updated after the date hereof up to and
including the Closing Date.
Section 3.06 Options or Warrants
There are no existing options, warrants, calls, or commitments of any character
relating to the authorised and unissued OTP common stock.
Section 3.07 Absence of Certain Changes or Events
------------------------------------
Except as set forth in this Agreement since the date of the most recent 31
December, 1995 balance sheet described in Section 3.04 and included in Schedule
3.05:
(a) There has not been (i) any material adverse change in the business,
operations, properties, level of inventory, assets, or condition of OTP or
(ii) and damage, destruction, or loss to OTP (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or conditions of OTP;
<PAGE>
(b) OTP has not (i) amended its articles of incorporation or bylaws; (ii)
declared or made, or agreed to declare or make, any payment of dividends or
distributions of any assets of any kind whatsoever to stockholders or
purchased or redeemed, or agreed to purchase or redeem, any of its capital
stock; (ii) waived any rights of value which in the aggregate are
extraordinary or material considering the business of OTP; (iv) made any
material change in its method of management, operation, or accounting which
is material to OTP; (v) entered into any other material transactions; (vi)
made any accrual or arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination pay to any present
or former officer or employee; (vii) increased the rate of compensation
payable or to become payable by it to any of its officers or directors or
any of its employees whose monthly compensation exceed $1,000; or (viii)
made any increase in any profit sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan, payment, or
arrangement made to, for, or with its officers, directors, or employees;
(c) OTP has not (i) granted or agreed to grant any options, warrants, or other
rights for its stocks, bonds, or other corporate securities calling for the
issuance thereof; (ii) borrowed or agreed to borrow any funds or incurred,
or become subject to, any material obligation or liability (absolute or
contingent) except liabilities incurred in the ordinary course of business;
(iii) paid any material obligation or liability (absolute or contingent)
other than current liabilities reflected in or shown on the most recent OTP
balance sheet and current liabilities incurred since that date in the
ordinary course of business; (iv) sold or transferred, or agreed to sell or
transfer, any of its assets, properties, or rights (except assets,
properties, or rights not used or useful in its business which , in the
aggregate have a value of less than $5,000) or cancelled, or agreed to
cancel, any debts or claims (except debts and claims which in the aggregate
are of a value of less than $5,000); (v) made or permitted any amendment or
termination of any contract, agreement, or license to which it is a party
if such amendment or termination is material, considering the business of
OTP; or (vi) issued, delivered, or agreed to issue or deliver any stock,
bonds, or other corporate securities including debentures (whether
authorised and unissued or held as treasury stock); and
(d) To the best knowledge of Exchangor, OTP has not become subject to any law
or regulation which materially and adversely affects, or in the future may
adversely affect, the business, operations, properties, assets, or
condition of OTP.
Section 3.08 Litigation and Proceedings
There are no actions, suits, or proceedings pending or, to the knowledge of
Exchangor threatened by or against OTP or affecting domestic or foreign, or
before any arbitrator of any kind. OTP does not have any knowledge of any
default on its part with respect to any judgment, order, writ, injunction,
decree, award, rule, or regulation of any court, arbitrator, or governmental
agency or instrumentality.
<PAGE>
ARTICLE IV
SPECIAL COVENANTS TO BE SATISFIED PRIOR TO CLOSING
Section 4.01 Activities of Associated, and OTP
---------------------------------
(a) From and after the date of this Agreement until the Closing Date and except
as set forth in the respective schedules to be delivered by Associated and
OTP pursuant hereto or as permitted or contemplated by this Agreement,
Associated and OTP will each:
(i) Carry on its business in substantially the same manner as it has
heretofore;
(ii) Maintain in full force and effect insurance comparable in amount and
in scope of coverage to that now maintained by it;
(iii)Perform in all material respects all of its obligations under material
contracts, leases, and instruments relating to or affecting its
assets, properties, and business;
(iv) Use its best efforts to maintain and preserve its business
organisation intact, to retain its key employees, and to maintain its
relationships with its material suppliers and customers;
(v) Duly and timely file for all taxable periods ending on or prior to the
Closing Date all federal, state, county, and local tax returns
required to be filed by or on behalf of such entity or any of its
subsidiaries or for which such entity or any of its subsidiaries may
be held responsible and shall pay, or cause to pay, all taxes required
to be shown as due and payable on such returns, as well as all
instalments of tax due and payable during the period commencing on the
date of this Agreement and ending on the Closing Date. All such tax
returns shall be prepared in a manner consistent with the preparation
of prior years' tax returns except as required by law or as agreed to
by the parties hereto prior to the filing thereof;
(vi) Withhold from each payment made on or prior to the Closing Date to
each employee of such corporation the amount of all taxes required to
be withheld therefrom and will pay the same, before becoming
delinquent, to the proper tax receiving officers; and
(vii)Fully comply with and perform in all material respects all obligations
and duties imposed on it by all federal, state, county and local laws
and all rules, regulations, and orders imposed by federal, state,
county and local governmental authorities.
(b) From and after the date of this Agreement and except as provided herein
until the Closing Date, Associated and OTP will not:
(i) Make any change in its articles of incorporation or bylaws;
<PAGE>
(ii) Take any action described in Section 2.07 in the case of Associated,
or Section 3.07 in the case of OTP;
(iii)Enter into or amend any contract, agreement, or other instrument of
any of the types described in such party's schedules, except that a
party may enter into or amend any contract, agreement, or other
instrument in the ordinary course of business; and
(iv) Enter into any agreement, waiver, or other arrangement providing for
an extension of time with respect to payment by, or assessment
against, such entity or any of its subsidiaries of any tax due and
payable with respect to the period commencing on the date of this
Agreement and ending on the Closing Date.
Section 4.02 Stockholder Approval
If required by the jurisdiction of incorporation of OTP subsequent to the
execution and delivery of this Agreement, OTP shall, at a meeting of its
stockholders duly called by the board of directors of OTP to be held as soon as
practicable, present for the authorisation and approval of the stockholders of
OTP, in accordance with the applicable provisions of the laws of the United
States of America of OTP and all applicable federal and state securities laws,
this Agreement.
Section 4.03 Access to Properties and Records
--------------------------------
OTP will afford to the officers and authorised representatives of Associated
full access to the properties, books, and records of OTP in order that
Associated may have full opportunity to make such reasonable investigation as it
shall desire to make of the affairs of OTP and will furnish Associated with such
additional financial and operating data and other information as to the business
and properties of OTP as Associated shall from time to time reasonably request.
Section 4.04 Additional Financial Statements
In connection with the information to be provided pursuant to this Article IV,
OTP shall provide additional audited and unaudited financial statements as soon
as reasonably practicable for inclusion by Associated in any application or
disclosure document required to be prepared in connection with this Agreement
and the transactions contemplated hereby or in connection with a future
registration statement.
(a) All such financial information referred to herein shall be prepared in
accordance with the uniform accounting rules with respect to the form
and content for financial statements filed under the Securities Act or
the Exchange Act of 1934, as amended (the "Exchange Act"), as
contained in Regulation S-X promulgated by the SEC. All financial
statements furnished for an interim period shall be accompanied by a
statement that all adjustments necessary to make it a fair statement
of the results of operations for such interim period or periods have
been included.
<PAGE>
(b) To the extent required, Associated and OTP shall utilise their best
efforts and cooperate to provide the information necessary to present
the pro forma consolidated and consolidating financial statements and
pro forma consolidated and consolidating summary information,
including a pro forma consolidated and consolidating balance sheet,
pro forma consolidated and consolidating income statements, pro forma
summaries of earnings (with aggregate an per-share earnings), and pro
forma (combined basis) earnings date for all periods required to be
presented and in the form and manner required for use in the form 8-k
and proxy statement or any other document required to be field with
the SEC or state securities agency, including the presentation of
Associated financial statements under generally accepted accounting
principles.
(c) OTP represents and warrants to Associated that the financial
statements delivered or to be delivered pursuant to this section will
be, when delivered, prepared in accordance with the generally accepted
accounting principles consistently applied throughout the periods
involved. The balance sheets included in such financial statements
shall present fairly the financial condition of OTP as of their
respective dates. As of the date of any such balance sheets, except as
and to the extent reflected or reserved against in such balance
sheets, there will not be any liabilities or obligations (absolute or
contingent) which should be reflected in a balance sheet or the notes
thereto prepared in accordance with generally accepted accounting
principles. The income statements included in such financial
statements prepared and delivered pursuant to this section shall
present fairly the results of operations of OTP for the respective
periods indicated. The statements of changes in financial position or
cash flows prepared and delivered in accordance with this section
shall present fairly the information which should be presented therein
in accordance with generally accepted accounting principles, except as
otherwise indicated in the notes thereto. Such financial statements
shall not be materially and adversely different from the financial
statements of OTP included in the Schedules.
Section 4.05 Transactions With Affiliates
Exchangor will prove that OTP shall provide to Associated, for possible
inclusion in SEC fillings, a description of every material contract, agreement,
or arrangement between OTP and any person who is or has ever been an officer of
director of OTP or person owning of record, or known by OTP to own beneficially,
5% or more of the issued and outstanding OTP Stock and which is to be performed
in whole or in part after the date hereof or was entered into within three years
before the date hereof. OTP represents and warrants that, in all of such
circumstances, the contract, agreement, or arrangement was for a bona fide
business purpose of OTP and the amount paid or received, whether in cash, in
services, or in kind, is, has been during the full term thereof, and is required
to be during the unexpired portion of the term there of, no less favourable to
OTP than terms available from otherwise unrelated parties in arm's-length
transactions. Except as disclosed in such description, no officer or director of
OTP, or 10% shareholder of OTP has, or has had during the preceding three years,
any interest, directly or indirectly, in any material transaction with OTP. The
description shall also include a description of any commitment by OTP, whether
written or oral, to lend any funds to, borrow any money from, or enter into any
other material transaction with, any such affiliated person.
<PAGE>
Section 4.06 Indemnification by Exchangor.
Exchangor will indemnify and hold harmless Associated and its directors and
officers, and each person, if any, who controls Associated within the meaning of
the Securities Act, from and against any and all loses, claims, damages,
expenses, liabilities, or actions to which any of them may become subject under
applicable law (including the Securities Act and the Exchange Act) and will
reimburse them for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any claims or actions, whether or not
resulting in liability, insofar as such losses, claims, damages, expenses,
liabilities, or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any application or
statement filed with a governmental body or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary in order to make the statements therein not
misleading, but only insofar as any such statement or omission was made in
reliance upon and in conformity with information furnished in writing by
Exchangor expressly for use therein. Exchangor agrees at any time upon the
request of Associated to furnish to them a written letter or statement
confirming the accuracy of the information with respect to OTP contained in any
report or other application or statement referred to in this Article IV, or in
any draft of any such documents, and confirming that the information with
respect to OTP contained in such document or draft was furnished by Exchangor,
indicating the inaccuracies or omissions contained in such document or draft or
indicating the information not furnished by Exchangor expressly for use therein.
The indemnity agreement contained in this Section 4.06 shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of Associated and shall survive the consummation of the transactions
contemplated by this Agreement.
Section 4.07 Indemnification by Associated
Associated will indemnify and hold harmless Exchangor, its directors and
officers, and each person, if any, who controls Exchangor within the meaning of
the Securities Act, from and against any and all losses, claims, damages,
expenses, liabilities, or actions to which any of them may become subject under
applicable law (including the Securities Act and the Exchange Act) and will
reimburse them for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any claims, damages, expenses,
liabilities, or actions arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any alleged omission to
state therein a material fact required to be stated therein, or necessary in
order to make the statements therein not misleading, but only insofar as any
such statement or omission was made in reliance upon and in conformity with
information furnished in writing by Associated expressly for use therein.
Associated agrees at any time upon the request of Exchangor to furnish to it a
written letter or statement confirming the accuracy of the information with
respect to Associated and its subsidiaries contained in any information / proxy
statement, report, or other application or statement referred to in this Article
IV, or in any draft of any such document, and confirming that the information
with respect to Associated contained in such document or draft was furnished by
Associated, indicating the inaccuracies or omissions contained in such document
or draft or indicating the information not furnished by Associated expressly for
use therein. The indemnity agreement contained in this Section 4.07 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of Exchangor and shall survive the consummation of the transactions
contemplated by this Agreement.
<PAGE>
Section 4.08 Sales Under Regulation S
(a) Associated will use its best efforts to comply with the reporting
requirements of the Exchange Act.
(b) Upon being informed in writing by any Affiliated Associated Stockholder or
Restricted Transferee that such person intends to sell any acquired Shares
under Regulation S promulgated under the Securities Act (including any rule
adopted in substitution or replacement thereof), Associated will certify in
writing to such person that it has filed all of the reports required to be
filed by it under the Exchange Act to enable such person to sell such
person's Acquired Shares under Regulation S or will inform such person in
writing that it has not filed any such report or reports.
(c) If any certificate representing any Acquired Shares is presented to
Associated's transfer agent for registration of transfer in connection with
any sale theretofore made under Regulation S, provided, that such
certificate is duly endorsed for transfer by the appropriate person(s) or
accompanied by a separate stock power duly executed by the appropriate
person(s), in each case accomplished by reasonable assurances that such
endorsements are genuine and effective, and is accompanied by an opinion of
counsel satisfactory to Associated and its counsel that such transfer has
complied with the requirements of Regulation S, Associated will promptly
instruct its transfer agent to register such transfer and to issue one or
more new certificates free of any stop-transfer order or restrictive
legend.
Section 4.09 The Acquisition of Associated Exchanged Stock
---------------------------------------------
The consummation of this Agreement and the merger contemplated herein, including
the issuance of the Associated Exchanged Stock to Exchangor in exchange for all
of the issued and outstanding OTP Stock as contemplated hereby, constitutes the
offer and sale of securities under the Securities Act and applicable state
statutes. Such transactions shall be consummated in reliance on exemptions from
the registration and prospectus delivery requirements of such statures which
depend, among other items, on the circumstances under which such securities are
acquired.
(a) In order to provide documentation for reliance upon exemptions from the
registration and prospectus delivery requirements for such transactions,
the approval by Exchangor and Associated of this Agreement and the
transactions contemplated hereby and/or the delivery of appropriate
separate representations shall constitute the parties acceptance of, and
concurrence in, the following representations and warranties:
(i) Exchangor acknowledges that neither the SEC nor the securities
commission of any state or other federal agency has made any
determination as to the merits of acquiring the Associated Exchanged
Stock, and that this transaction involves certain risks.
<PAGE>
(ii) Exchangor has received and read the Agreement and understand the risks
related to the consummation of the transactions herein contemplated.
(iii)Exchangor has such knowledge and experience in business and financial
matters that it is capable of evaluating Associated and its business
operations.
(iv) Exchangor has been provided with a copy of this Agreement and the
related disclosure schedules of the parties hereto plus all materials
and information requested by Exchangor or its representative,
including any information requested to verify any information
furnished (to the extent such information is available or can be
obtained without unreasonable effort or expense), and the parties have
been provided the opportunity for direct communication regarding the
transactions contemplated hereby.
(v) All information which Exchangor has provided to Associated or its
agents or representatives concerning their suitability and intent to
hold shares in Associated following the transactions contemplated
hereby is complete, accurate, and correct.
(vi) Exchangor has not offered or sold any securities of OTP or interest in
this Agreement and have no present intention of dividing the
Associated Exchanged Stock to be received or the rights under this
Agreement with others or of reselling or otherwise disposing of any
portion of such stock or rights, either currently or after the passage
of a fixed or determinable period of time or on the occurrence of
non-occurrence of any predetermined event or circumstance.
(vii)Exchangor understands that the Associated Exchanged Stock has not been
registered, but is being acquired by reason of a specific exemption
under the Securities Act as well as under certain state statutes for
transactions by an issuer not involving any public offering and that
any disposition of the subject Associated Exchanged Stock may, under
certain circumstances, be inconsistent with this exemption and may
make the undersigned an "underwriter" within the meaning of the
Securities Act. It is understood that the definition of "underwriter"
focuses upon the concept of "distribution" and that any subsequent
disposition of the subject Associated Exchanged Stock can only be
effected in transactions which are not considered distributions.
Generally, the term "distribution" is considered synonymous with
"public offering" or any other offer or sale involving general
solicitation or general advertising. Under present law, in determining
whether a distribution occurs when securities are sold into the public
market, under certain circumstances one must consider the availability
of public information regarding the issuer, a holding period for the
securities sufficient to assure that the persons desiring to sell the
securities without registration first bear the economic risk of their
investment, and a limitation on the number of securities which the
stockholder is permitted to sell and on the manner of sale, thereby
reducing the potential impact of the sale on the trading markets.
These criteria are set forth specifically in Regulation S promulgated
under the Securities Act, which allows sales of securities in reliance
upon Regulation S only in limited amounts in accordance with the terms
and conditions of that rule, after 41 days after the date the
Associated Exchanged Stock is acquired from Associated and the
Associated Exchanged Stock is fully paid for, as calculated in
accordance with Regulation S. After 41 days from the date the
securities acquired from Associated and are fully paid for, as
calculated in accordance with Regulation S, they can generally be sold
without meeting those conditions, provided the holder is not (and has
not been for the preceding three months) an affiliate of the issuer.
<PAGE>
(viii) Exchangor acknowledges that the shares of Associated Exchanged Stock
must be held and may not be sold, transferred, or otherwise disposed
of for value unless they are subsequently registered under the
Securities Act or an exemption from such registration is available.
Associated is under no obligation to register the Associated Exchanged
Stock under the Securities Act, except as may be expressly agreed to
by it in writing. If Regulation S is available (and no assurance is
given that it will be except as expressly set forth in this
Agreement), after 41 days following the date the shares are fully paid
for, only routine sales of such Associated Exchanged Stock in limited
amounts can be made in reliance upon Regulation S in accordance with
the terms and conditions of that rule. Associated is under no
obligation to the parties to make Regulation S available, except as
may be expressly agreed to by it in writing in this Agreement, and in
the event Regulation S is not available, compliance with regulation A
or some other disclosure exemption may be required before Exchangor
can sell, transfer, or otherwise dispose of such Associated Exchanged
Stock without registration under the Securities Act. Associated
registrar and transfer agent will maintain a stop transfer order
against the registration or transfer of the Associated Exchanged
Stock, and the certificate representing the Associated Exchanged Stock
will bear a legend in substantially the following form so restricting
the sale of such securities:
THE SHARES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, A U.S. PERSON: (i) AS PART OF THEIR DISTRIBUTION AT ANY
TIME; OR (ii) OTHERWISE UNTIL FORTY DAYS AFTER THE DATE ("THE
<PAGE>
RESTRICTED PERIOD"), EXCEPT IN EITHER CASE IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT. PURCHASER ACKNOWLEDGES THAT THE
SHARES REPRESENTED HEREBY HAVE BEEN SOLD IN COMPLIANCE WITH
REGULATIONS.
(ix) Associated may refuse to register further transfers, or resales
of the Associated Exchanged Stock in the absence of compliance
with Regulation S unless the undersigned furnishes the issuer
with a "no-action" or interpretive letter from the SEC or an
opinion of counsel reasonably acceptable to Associated stating
that the transfer is proper. Further, unless such letter or
opinion states that the shares of Associated Exchanged Stock are
free of any restrictions under the Securities Act, Associated may
refuse to transfer the Associated Exchanged Stock to any
transferee who does not furnish in writing to it the same
representations and agree to the same conditions with respect to
such Associated Exchanged Stock as set forth herein. Associated
may also refuse to transfer the Associated Exchanged Stock if any
circumstances are present reasonably indicating that the
transferee's representations are not accurate.
(b) In connection with the transaction contemplated by this
Agreement, OTP and Associated shall each file, with the
assistance of the other and their respective legal counsel, such
notices, applications, reports, or other instruments as may be
deemed by them to be necessary or appropriate in an effort to
document reliance on such exemptions, including a notice on form
D to be filed with the SEC and the appropriate regulatory
authority in the state or country where Exchangor reside unless
an exemption requiring no filing is available in such
jurisdiction, all to the extent and in the manner as may be
deemed by such parties to be appropriate.
(c) In order to more fully document reliance on the exemptions as
provided herein, Exchangor shall execute and deliver to
Associated, at or prior to the Closing, such further letters of
representation, acknowledgment, suitability or the like as
Associated and its counsel may reasonably request in connection
with reliance on exemptions from registration under such
securities laws.
(d) Associated and Exchangor acknowledge that the basis for relying
on exemptions from registration or qualifications are factual,
depending on the conduct of the various parties, and that no
legal opinion or other assurance will be required or given to the
effect that the transactions contemplated hereby are in fact
exempt from registration or qualification.
Section 4.10 Third Party Consents
Associated and Exchangor agree to cooperate with each other in order to obtain
any third party consents to this Agreement and the transactions herein
contemplated that are required.
<PAGE>
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF Exchangor
The obligations of Exchangor under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations
The representations and warranties made by Associated in this Agreement were
true when made and shall be true at the Closing Date with the same force and
affect as if such representations and warranties were made at and as of the
Closing Date (except for changes therein permitted by this Agreement ), and
Associated shall have performed or complied with all covenants and conditions
required by this Agreement to be performed or complied with by Associated prior
to or at the Closing. Exchangor shall be furnished with certificates, signed by
duly authorised officers of Associated and dated the Closing Date, to the
foregoing effect.
Section 5.02 Officer's Certificates
Exchangor shall have been furnished with certificates dated the Closing Date and
signed by the duly authorised chief executive officer and principal accounting
and financial officer of Associated to the effect that no litigation,
proceeding, investigation or inquiry is pending or, to the best knowledge of
Associated threatened, which might result in an action to enjoin or prevent the
consummation of the transaction contemplated by this Agreement. Furthermore,
based on certificates of good standing, representations of government agencies,
and Associated's own documents, the certificate shall represent that:
(a) This Agreement has been duly approved by Associated's board of Directors
and has been duly executed and delivered in the name and on behalf of
Associated by its duly authorised officers pursuant to, and in compliance
with, authority granted by the board of directors of Associated pursuant to
a unanimous consent.
(b) The representations and warranties of Associated set forth in this
Agreement are true and correct as of the date of the certificate.
(c) There have been no material adverse changes in Associated up to and
including the date of the certificate.
(d) All conditions required by this Agreement to have been met, satisfied, or
performed by Associated have been met.
(e) The consummation of the transactions contemplated by this Agreement does
not violate any law, regulation, order, writ, injunction or decree of any
court or governmental body or result in the creation or imposition of any
mortgage, lien, charge or encumbrance of any nature upon any of the
properties of Associated
<PAGE>
pursuant to any mortgage, resolution agreement or instrument to which
Associated is a party.
(f) All authorisations, consents, approvals, registrations, and/or filings with
any governmental body, agency or court required in connection with the
execution and delivery of the documents by Associated have been obtained
and are in full force and effect or, if not required to have been obtained,
will be in full force and effect by such time as may be required.
(g) There is no action, suit, proceeding, inquiry or investigation at law or in
equity by any public board or body pending or threatened against Associated
wherein an unfavourable decision ruling, or finding would have an adverse
affect on the financial condition of Associated the operation of
Associated, or the acquisition and reorganisation contemplated herein, or
any material agreement or instrument by which Associated is bound or would
in any way contest the existence of Associated.
Section 5.03 No Material Adverse Change
Prior to the Closing Date, there shall not have occurred any material adverse
change in the financial condition, business or operations of Associated, nor
shall any event have occurred which, with the lapse of time or the giving of
notice, may cause or create any material adverse change in the financial
condition, business or operations of Associated.
Section 5.04 Good Standing
Exchangor shall have received certificates of good standing from the appropriate
authorities, dated as of a date within five days prior to the Closing Date,
certifying that Associated is in good standing as a corporation in the state of
Nevada.
Section 5.05 Other Items
Exchangor shall have received such further documents , certificates, or
instruments relating to the transaction contemplated hereby as Exchangor may
reasonably request.
ARTICLE V1
CONDITIONS PRECEDENT TO OBLIGATIONS OF
Associated
The obligations of Associated under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
<PAGE>
Section 6.01 Accuracy of Representations
The representation and warranties made by Exchangor regarding its stock
ownership and OTP in this Agreement were true when made and shall be true at the
Closing Date with the same force and affect as if such representations and
warranties were made at and as of the Closing Date (except for changes therein
permitted by this Agreement ), and OTP shall have performed or complied with all
covenants and conditions required by this Agreement to be performed or complied
with by OTP prior to or at the Closing. Associated shall be furnished with a
certificate, signed by a duly authorised officer of OTP and dated the Closing
Date, to the foregoing effect.
Section 6.02 Officer's Certificates
Associated shall have been furnished with certificates dated the Closing date
and signed by a duly authorised chief executive officer and principal accounting
and financial officer of OTP or by Exchangor to the effect that no litigation,
proceeding, investigation, or inquiry is pending, or to the best knowledge of
OTP or Exchangor, threatened which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this Agreement.
Furthermore, based on certificates of good standing, representation of
government agencies, and OTP's and/or Exchangor's own documents, the certificate
shall represent that:
(a) This Agreement has been duly approved by OTP's and/or Exchangor's board of
directors and has been duly executed and delivered in the name and on
behalf of OTP by its duly authorised officers pursuant to , and in
compliance with, authority granted by the board of directors of OTP.
(b) The representations and warranties of Exchangor set forth in this Agreement
are true and correct as of the date of the certificate:
(c) Except as provided or permitted herein, there have been no material adverse
changes in OTP up to and including the date of the certificate:
(d) All conditions required by this Agreement to have been met, satisfied or
performed by OTP and Exchangor have been met.
(e) The consummation of the transactions contemplated by this Agreement does
not violate any law, regulation order, writ injunction or decree of any
court or governmental body or result in the creation or imposition of any
mortgage, lien, charge or encumbrance of any nature upon any of the
properties of OTP, pursuant to any mortgage, resolution, agreement, or
instrument to which OTP or Exchangor is a party.
(f) All authorisations, consents, approvals, registrations and/or filings with
any governmental body, agency or court required in connection with the
execution and delivery of the documents by OTP have been obtained and are
in full force and effect or, if not required to have been obtained will be
in full force and effect by such time as may be required; and
<PAGE>
(g) There is no action, suit, proceeding, inquiry or investigation at law or in
equity by any public board or body pending or threatened against OTP
wherein an unfavourable decision, ruling or finding would have an adverse
affect on the financial condition of OTP, the operation of OTP or the
acquisition and reorganisation contemplated herein, or any material
agreement or instrument by which OTP is bound or would in any way contest
the existence of OTP.
Section 6.03 No Material Adverse Change
Except as provided or permitted herein, prior to the Closing Date, there shall
not have occurred any material adverse change in the financial condition,
business or operations of OTP, nor shall any event have occurred which, with the
lapse of time or the giving of notice may cause or create any material adverse
change in the financial condition, business, or operations of OTP.
Section 6.04 Other Items
Associated shall have received such further documents, certificates, or
instruments relating to the transactions contemplated hereby as Associated may
reasonably request.
ARTICLE V11
MISCELLANEOUS
Section 7.01 No Representation Regarding Tax Treatment
------------------------------------------
No representation or warranty is being made by any party to any other regarding
the treatment of this transaction for federal or state income taxation. Each
party has relied exclusively on its own legal, accounting and other tax adviser
regarding the treatment of this transaction for federal and stage income taxes
and on no representations, warranty or assurance from any other party or such
other party's legal, accounting or other adviser.
Section 7.02 Governing Law
This Agreement shall be governed by, enforced and construed under and in
accordance with the laws of the United States of America and, with respect to
matters of state law, with the laws of the state of Nevada and with respect to
matters governing corporations organised under the laws of such state.
Section 7.03 Notices
All notices, demands, requests or other communications required or authorised
hereunder shall be deemed given sufficiently if in writing and if personally
delivered, if sent by facsimile transmission, confirmed with a written copy
thereof sent by overnight express delivery, if sent by registered mail or
certified mail, return receipt requested and postage prepaid; or if sent by
overnight express delivery:
<PAGE>
If to Associated to: 1204 Third Avenue, Suite 172
New York, NY USA 10021
With Copy to: David S. Stevens
Level 2, 55 Hunter Street,
Sydney NSW 2000 Australia Fax: 612-233 3860
If to Exchangor to: Stanley Looman
Dominicanessen straat 22,
Oranjestad, Aruba Telecopy No: 0011-2978 36546
or such other addresses and facsimile numbers as shall be furnished by any party
in the manner for giving notices hereunder and any such notice demand, request
or other communication shall be deemed to have been given as of the date so
delivered or sent by facsimile transmission three days after the date so mailed
or one day after the date so sent by overnight delivery.
Section 7.04 Attorney's Fees
In the event that any party institutes any action or suit to enforce this
Agreement or to secure relief from any default hereunder or breach hereof, the
breaching party or parties shall reimburse the nonbreaching party or parties for
all costs, including reasonable attorney's fees, incurred in connection
therewith and in enforcing or collecting any judgement rendered therein.
Section 7.05 Schedules: Knowledge
Whenever in any section of this Agreement reference is made to information set
forth in the schedules provided by Associated, or Exchangor, such reference is
to information specifically set forth in such schedules and clearly marked to
identify the information specifically set forth in such schedules and clearly
marked to identify the section of this Agreement to which the information
relates. Whenever any representation is made to the "knowledge" of any party, it
shall be deemed to be a representation that no officer or director of such
party, after reasonable investigation, has any knowledge of such matters.
Section 7.06 Third Party Beneficiaries
This contract is solely between Associated and Exchangor, and, except as
specifically provided, no director, officer, stockholder, employee, agent,
independent contractor, or any other person or entity shall be deemed to be a
third party beneficiary of this Agreement.
Section 7.07 Entire Agreement
This Agreement represents the entire agreement between the parties relating to
the subject matter hereof. All previous agreements between the parties whether
written or oral, have been merged into this Agreement. This Agreement alone
fully and completely expresses the agreement of the parties relating to the
subject matter hereof. There are no other course of dealing, understandings,
agreements, representations, or warranties, written or oral except as set forth
herein.
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Section 7.08 Survival: Termination
The representations, warranties, and covenants of the respective parties shall
service the Closing Date and the consummation of the transactions herein
contemplated.
Section 7.9 Counterparts
This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
Section 7.10 Amendment or Waiver
Every right and remedy provided herein shall be cumulative with every other
right and remedy, whether conferred herein, at law, or in equity and such
remedies may be enforced concurrently and no waiver by any party of the
performance of any obligation by the other shall be construed as a waiver of the
same or any other default then theretofore, or thereafter occurring or existing.
At any time prior to the Closing Date, this Agreement may be amended by a
writing signed by all parties hereto, with respect to any of the terms contained
herein , and any term or condition of this Agreement may be waived or the time
for performance thereof may be extended by a writing signed by the party or
parties for whose benefit the provision is intended.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officer, hereunto duly authorised as of the date first above
written.
For and on behalf of Exchangor:
By: Stanley Looman
S\- Stanley Looman
Associated Technologies,
a Nevada Corporation
By: David S. Stevens
S/- David S. Stevens
