STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (the "Agreement"), dated this 8th day of
December 1995, between BRIA Communications Corp., a Utah corporation ("BRIA")
and AltaChem Group, Inc., Ireland, a corporation to be formed under the laws of
Ireland with principal offices at 000 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx,
Xxxx 00000 (the "AltaChem"), Xxxxx Xx-Xxxxxxxxx, an individual ("Xx-Xxxxxxxxx"),
Xxxxx Xxxxxx, an individual ("Xxxxxx"), and all of the Shareholders of AltaChem
("ACS") (for purposes of this Agreement, BRIA, AltaChem, De-Schrijver, Tilton
and ACS may also be collectively referred to hereinafter as the "Parties").
PREMISES
WHEREAS, ACS represents that they are the legal and beneficial owners of
all of the outstanding shares of capital stock of AltaChem;
WHEREAS, ACS and BRIA desire to exchange 100% of the capital stock of
AltaChem for 75% of the issued and outstanding shares of common stock of BRIA,
all on the terms and conditions hereinafter set forth in such a manner that the
exchange will constitute a tax-free reorganization pursuant to the provisions of
Section 368(1)(B) of the Internal Revenue Code of 1986, as amended.
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 herein,
and for other valuable consideration, the receipt and adequacy of which are
hereby acknowledged, it is hereby agreed as follows:
1. Delivery of Shares of AltaChem. Upon the terms and subject to the
conditions set forth in this Agreement, ACS agrees to transfer and deliver
to BRIA, and BRIA agrees to acquire, all of the outstanding shares of
capital stock of AltaChem (the "Shares").
2. Consideration for Transfer of Shares. Upon the terms and subject to the
conditions set forth in this Agreement, BRIA agrees to deliver to ACS, in
full consideration of and in exchange for said shares of capital stock of
AltaChem, a number of shares of common stock, $.0001 par value, ("Common
Stock") of BRIA equivalent to 75% of all of the issued and outstanding
Common Stock of BRIA, as of the Closing date, to be delivered at the
Closing provided for in Paragraph 6 hereof. This quantity of Common Stock
shall reflect all other issuances of Common Stock as settlement of outside
debts of BRIA.
3. Miscellaneous Provisions Relating to Delivery of BRIA Common Stock.
a. No fractional shares of Common Stock of BRIA will be delivered. In the
event the ACS, or one of them, are determined to be due a fractional
share, such ACS will receive one full share instead of a fractional
portion.
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b. If, prior to the delivery of any of the shares of BRIA Common Stock
pursuant to Paragraph 2 hereof, BRIA shall have (1) effected one or
more subdivisions, combinations or recapitalization of its Common
Stock; (2) effected any merger, consolidation, reorganization or
business combination in which BRIA is not the surviving entity; (3)
declared or paid any dividend payable in its Common Stock; or (4) made
one or more distributions on the shares of its Common Stock in whole or
partial liquidation of BRIA, then, and in such event, the number and
kind of shares that remain to be delivered pursuant to said Paragraph 2
shall be adjusted for each such subdivision, combination,
reclassification, stock dividend, distribution, merger, consolidation,
reorganization, or business combination. The amount and type of all
such adjustments shall be such as to give each of the ACS the same
rights with respect to the BRIA shares to be delivered pursuant to said
Paragraph 2, that he would have if he had been the record holder of
said shares immediately prior to the date when such subdivision,
combination, reclassification, stock dividend, distribution, merger,
consolidation, reorganization or business combination occurred.
4. Conduct of Business Prior to Closing. From the date hereof until the time
of closing hereunder, ACS and AltaChem covenant and agree that AltaChem
shall at all times conduct its business in the usual and ordinary course
and shall not, without the written consent of BRIA:
a. Purchase, acquire, sell or otherwise dispose of any property or
services of any kind whatsoever, other than purchases and sales in the
ordinary course of business;
b. Mortgage, pledge, create security interests in or otherwise encumber
any of its properties or assets;
c. Make or incur any capital commitment or expenditure or any unusual or
long-term commitment;
d. Pay any debt, obligation or liability, absolute or contingent, except
current liabilities incurred in the ordinary course of business and
current portions of long-term liabilities;
x. Xxxxx or pay any increase in salary or other increased compensation to
any officer, director, agent, consultant or employee;
f. Declare or pay any dividend or make any other distribution to
shareholders;
g. Reveal to third persons any trade secret, invention, customer list or
other confidential or proprietary information, or act otherwise in any
manner which may materially and adversely affect any of its rights,
interests, assets or business;
h. Issue or sell any additional stock or securities, or grant any rights
to subscribe for or to purchase, or any options or warrants for the
purchase of, any additional stock or other securities;
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i. Agree to settle any action or proceeding before any court or
governmental body, except for collection matters instituted or settled
in the ordinary course of business; or
j. Enter into any transaction, contract or other commitment or take any
action that would constitute a material breach of the representations,
warranties or agreements of ACS contained herein or which would
interfere with or prevent the closing provided for herein.
From the date hereof until the time of closing hereunder, ACS and
AltaChem covenant and agree that AltaChem shall duly and timely file all
reports and returns required to be filed by it with the United States
Government, the Republic of Ireland and the jurisdiction or jurisdictions
in which it is doing business; promptly pay when due all federal, state and
local taxes, assessments and government fees, charges, interests and
penalties lawfully levied or assessed upon AltaChem or any of its
properties; to the best of its ability duly observe and conform to all
lawful requirements applicable to its business; to the best of its ability
preserve its business organization intact and retain its present officers
and employees; to the best of its ability preserve the good will of its
suppliers, customers and those having business relations with it; maintain
insurance coverage now in effect on all its properties, and on all
properties for which it is responsible, and carry the same coverage of
public liability, personal injury and property damage that is now in
effect; maintain, keep and preserve all of its properties and assets in
good condition and state of repair; and meet its contractual obligations
and not become in default of any thereof.
5. Access to Books and Records. Except as hereinafter provided, BRIA and its
officers, employees and agents, shall have full access at all reasonable
times from and after the date hereof to the plants, facilities, books and
records of AltaChem and AltaChem shall cooperate fully with BRIA to the end
that it may become familiar with the properties and business of AltaChem.
BRIA agrees to treat any information that is disclosed to BRIA by AltaChem
and is proprietary or confidential to AltaChem, as confidential
information, and in the event the closing does not take place, all
documents will be returned to AltaChem and BRIA and will not make or retain
copies of any documents or make use of any confidential information
disclosed to it in the conduct of its business.
6. Closing. The closing of the exchange provided for herein shall take place
at BRIA's office at 000 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx
00000 on the 20th day of July 1995 at 10:00 a.m., or at such other time and
place as may be mutually agreed upon by the parties hereto, such time and
date being herein referred to as the "Closing Date." At the closing, ACS
shall deliver to BRIA all certificates, assignments, and other instruments
which may be necessary, desirable, or appropriate in order to transfer to
BRIA all of the outstanding shares of capital stock of AltaChem, all in
form and substance reasonably satisfactory to counsel for BRIA. At such
closing, BRIA shall deliver to AltaChem certificates evidencing the shares
of Common Stock of BRIA to be delivered to ACS pursuant to Paragraph 2
hereof, together with such other instruments which may be necessary,
desirable, or appropriate to accomplish such transfers, all in form and
substance satisfactory to counsel for ACS.
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7. Representations and Warranties of ACS & AltaChem. ACS & AltaChem jointly
and severally represent and warrant to and agree with BRIA as follows:
a. Organization and Standing. AltaChem is a corporation duly organized,
validly existing and in good standing under the laws of the Republic of
Ireland, with full corporate power to carry on its business as now
being conducted and to own and operate the property and assets now
owned and operated by it, and is duly qualified to transact business
and in good standing in each jurisdiction where the ownership of its
properties or the conduct of its business requires it to be licensed or
qualified to do business. AltaChem also delivered to BRIA a copy of its
Articles of Incorporation and all amendments thereto, certified by the
appropriate official from the Republic of Ireland, and a copy of its
By-Laws as amended, certified by its Secretary, which documents shall
be complete and correct as of the date of this Agreement.
b. Subsidiaries, Etc. AltaChem has no subsidiaries and is not party to any
partnership, joint venture or similar agreement, except as disclosed in
the schedule referred to in subparagraph (f) of Paragraph 7 hereof.
c. Capital Stock. The authorized capital stock of AltaChem consists of
_____________ shares of Common Stock, $________ par value, of which
___________ shares are validly issued and outstanding. All of said
outstanding shares of AltaChem have been duly authorized and validly
issued, are fully paid and nonassessable. There are no options,
warrants or other agreements or commitments which now or may in the
future obligate AltaChem to issue or purchase any shares of its capital
stock or other securities.
d. Indebtedness. AltaChem will deliver within 180 days following the date
of this Agreement to BRIA a schedule, identified by reference to this
subparagraph, listing all promissory notes payable by AltaChem, all
agreements of AltaChem to borrow money from others, and all commitments
by others to lend money to AltaChem. As to each note, obligation to
borrow and loan commitment, such schedule accurately sets forth the
interest rate, terms of payment of principal and interest, identity of
security (if any) and any other material terms of such indebtedness.
AltaChem is not in default in any respect under, and is not otherwise
in violation or contravention of, any of the terms or provisions of any
note, loan agreement, agreement to borrow money from others or any
commitment by others to lend money.
e. Financial Statements. AltaChem will deliver to BRIA within 180 days
after the date of this Agreement, each's audited year end financial
statements for the three years prior to the execution of this Agreement
or to the time of incorporation if less than three years. Such
statements will be initialed by officers of AltaChem and BRIA for
identification. All of such financial statements are or will be
complete and fairly present the financial position of AltaChem on the
indicated dates and the results of its operations for the indicated
periods. All of such statements will be prepared in accordance with
generally accepted accounting principles consistently applied. AltaChem
will have no liabilities, whether absolute, accrued, contingent or
otherwise, other than (i) liabilities disclosed,
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(ii) incurred in "arms-length" transactions in the ordinary course of
business since the Balance Sheet Date and (iii) liabilities disclosed
in subparagraph (k) of this Paragraph 7 or the schedule referred to in
subparagraph (f) of this Paragraph 7.
f. Contracts and Other Commitments. AltaChem will deliver to BRIA within
180 days after the date of this Agreement a complete and accurate
schedule, identified by reference to this subparagraph, listing and
briefly describing all Material Contracts. For this purpose, the term
"Material Contracts" shall be defined to mean (i) all contracts and
commitments out of the ordinary course of business; (ii) all contracts
and commitments involving an obligation which cannot or, in reasonable
probability, will not be performed or terminated within sixty (60) days
from the date thereof; (iii) all bonus, incentive compensation,
pension, group insurance or employee welfare plans of any nature
whatsoever; (iv) all collective bargaining agreements or other
contracts or commitments to or with any labor unions or other employee
representatives or groups of employees; (v) employment contracts and
other contracts, agreements or commitments to or with individual
employees, agents or consultants extending for a period of more than
three (3) months from the date thereof or providing for earlier
termination only upon the payment of a penalty or equivalent thereof;
or (vi) all other contracts or commitments providing for payments based
in any manner upon the sales, purchases or profits of AltaChem. There
has not been any material default in any obligation to be performed by
AltaChem under any Material Contract listed on the said schedule, and
AltaChem has not waived any material right under any such Material
Contract.
g. Assets. AltaChem will deliver to BRIA within 180 days after the date of
this Agreement a complete and accurate schedule, identified by
reference to this subparagraph, containing (i) a complete list,
together with stock certificates, of all of AltaChem's ownership
interests and options to purchase ownership interests in other entities
(ii) complete legal description of all real property owned, leased or
otherwise used or occupied by it, (iii) a list of all banks and other
institutions in which it has any account or safe deposit showing the
identifying numbers and names of the persons authorized to draw thereon
or have access thereto, (iv) a list of any and all intellectual
property it owns or licenses or otherwise has legal use over and (v) a
list of all capitalized machinery, tools, equipment owned, leased or
otherwise used by it. Except as disclosed on the schedule referred to
in subparagraph (f) of this Paragraph 7, except as disclosed in the
schedule of assets supplied pursuant to this subparagraph, and except
as acquired after the date hereon on terms approved by BRIA, AltaChem
has good and marketable title to all property and assets used in its
business, including all property and assets reflected in the schedule
referred to in this subparagraph and in the Balance Sheet and all
properties and assets acquired after the Balance Sheet Date (other than
assets disposed of since the Balance Sheet Date in the ordinary course
of business), subject to no liens, mortgages, pledges, encumbrances or
charges of any kind. The machinery, equipment and other facilities of
AltaChem are in satisfactory operating condition and repair for the
business now conducted by it. Within 180 days after the date of this
Agreement, AltaChem will deliver to Buyer copies of all records,
including all signatures
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or authorization cards, pertaining to such safe deposit boxes and bank
accounts.
h. Litigation. Except as identified in a complete and accurate schedule,
identified by reference to this subparagraph and delivered to BRIA,
AltaChem is not engaged in or threatened with any legal action or other
proceeding before any court or administrative agency. AltaChem has not
violated any laws, regulations or order applicable to its business or
activities, and the conduct of the present business of AltaChem at the
present location is in conformity with all zoning and building code
requirements.
i. Accounts Receivable. All accounts receivable of AltaChem, whether or
not reflected in the Balance Sheets or the Interim Balance Sheet,
represent sales actually made in the ordinary course of business, and
are current and collectible net of any reserves shown on the Balance
Sheets or the Interim Balance Sheet (which reserves are adequate and
were calculated consistent with past practice). Subject to such
reserves, each of the accounts receivable has been collected in full or
will be collected in full, without any setoff, within ninety days after
the day on which it first becomes due and payable.
j. Inventories. All inventory of AltaChem, whether or not reflected in the
Balance Sheets or the Interim Balance Sheet, consists of a quality and
quantity usable and salable in the ordinary course of business, except
obsolete items and items of below-standard quality, all of which have
been written off or written down to net realizable value in the Balance
Sheets or the Interim Balance Sheet. All inventories not written off
have been recorded at the lower of average cost or market. The
quantities of each type of inventory (whether raw materials,
work-in-process, or finished goods) are not excessive, but are
reasonable and warranted in the present circumstances of AltaChem. All
work in process and finished goods inventory is free from any defect or
other deficiency.
k. Purchase Commitments and Outstanding Bids. No purchase commitment of
AltaChem is in excess of normal, ordinary and usual requirements of its
business, or was made at any price in excess of the then current market
price, or contains terms and conditions more onerous than those usually
and customary in the industry. In the aggregate, the outstanding bids,
sales proposals, contracts or unfilled orders of AltaChem (i) will not
(based on today's costs and reasonably foreseeable increases in such
costs) require AltaChem to supply goods or services at cost to AltaChem
in excess of the revenues to be received therefrom, and (ii) quote
prices which include a markup over reasonably estimated costs
consistent with past markups on similar business.
l. Title to AltaChem Stock. Each ACS represents and warrants for himself
and not for the others: that this Agreement has been duly executed and
delivered by him and is, as to him, a valid agreement binding upon him
in accordance with its terms; that he individually has valid title to
the shares of capital stock of AltaChem set forth opposite his name in
Exhibit "A" hereto, with full right, power and authority to transfer,
sell and deliver such shares pursuant to this Agreement; and that, upon
delivery of his shares pursuant to this Agreement, BRIA will receive
valid and marketable title to his shares, free and clear of all voting
or other trust arrangements, liens, encumbrances, restrictions,
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and adverse claims, whether existing or contingent.
The schedules referred to in this Paragraph 7 will be delivered to BRIA on
or prior to 180 days after the date of this Agreement. In the event that, after
a review of the contents of such schedules and the documents listed or described
therein, BRIA determines in its sole discretion that the contents of such
schedules, or the documents referred to therein or the obligations under such
documents are unacceptable to BRIA, BRIA may terminate this Agreement without
any liability on its part whatsoever by giving written notice of such
termination to AltaChem and ACS on or before 210 days after the date of this
Agreement.
8. Representations and Warranties of BRIA. BRIA represents and warrants to and
agrees with AltaChem as follows:
a. Organization and Standing. BRIA is a corporation duly organized, and
will be validly existing and in good standing under the laws of the
State of New Jersey upon its resolution of its outstanding sales and
gross income tax balances, and will then have full corporate power to
carry on its business as now being conducted and to own and operate the
property and assets now owned and operated by it, and be duly qualified
to transact business and in good standing in each jurisdiction where
the ownership of its properties or the conduct of its business requires
it to be licensed or qualified to do business.
b. Capital Stock. The authorized capital stock of BRIA consists of:
200,000,000 shares of Class A Common Stock, $0.001 par value, 220,000
shares of Class B Common Stock, $0.001 par value. 2,281,424 shares of
Class A Common Stock and 220,000 shares of Class B Common Stock were
issued and outstanding at the close of business on July 11, 1995. All
of said outstanding shares are validly issued, fully paid and
non-assessable.
c. Validity of Shares. The shares of Common Stock to be delivered by BRIA
pursuant to this Agreement will, when so delivered, be validly issued
and outstanding, fully paid and non-assessable.
d. Changes, Dividends, Etc. Prior to the closing hereunder, BRIA will not
split, combine or otherwise change or reclassify its outstanding Common
Stock or declare or distribute any cash or stock dividend upon such
Common Stock.
e. Authorization of Agreement. BRIA's board of directors has duly
authorized the execution, delivery and performance of this Agreement by
BRIA have been duly authorized by its Board of Directors, and will not
result in any breach of or violate or constitute a default under its
Articles of Incorporation or By-Laws or any indenture, mortgage or
other agreement or instrument to which it is a party.
f. No Violation of Law, Etc. Neither the execution nor the delivery of
this Agreement by BRIA, nor the performance of any of its obligations
hereunder will result in a breach or violation of any law, order, rule,
regulation, writ, injunction or decree or any
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governmental instrumentality or court having jurisdiction over BRIA or
any of its assets or rights, or result in the creation or imposition of
any lien, charge or encumbrance of any kind whatever on any of such
assets or rights.
g. Financial Statements. BRIA has delivered to AltaChem its reports on
Forms 10-QSB and 10-KSB for the past two years which contains a
consolidated balance sheet as of December 31, 1994, and the related
statement of consolidated income for the year then ended. Such
financial statements have been initialed by officers of BRIA and
AltaChem for identification. Such financial statements are complete,
have been prepared in accordance with generally accepted accounting
principles consistently applied and fairly present the consolidated
financial position of BRIA at such date, and the results of its
operations for the period therein specified.
9. Conditions to Obligations of BRIA. The obligations of BRIA under this
Agreement are subject to the fulfillment, at or prior to the Closing Date,
of the following conditions precedent:
a. All representations and warranties of ACS and AltaChem contained herein
and in any certificate or other investment delivered pursuant to the
provisions hereof, or in connection with the transactions contemplated
hereby, shall be true on the Closing Date with the same force and
effect as though such representations and warranties had been made on
the Closing Date.
b. ACS and AltaChem shall have performed and complied with all of the
terms, covenants and conditions of this Agreement to be performed or
complied with by them, respectively, on or before the Closing Date.
c. The directors of AltaChem shall have taken all necessary action to
authorize the execution and performance of this Agreement, and AltaChem
shall have delivered to BRIA true and complete copies, certified by the
Secretary, of resolutions of its Board of Directors evidencing such
action.
d. ACS and AltaChem shall have delivered to BRIA such certificates dated
as of the Closing Date, certifying in such detail as BRIA may
reasonably request the fulfillment of the conditions specified in this
Paragraph 9. No legend or other reference to any purported Encumbrance
appears upon any certificate. The delivery of certificates to BRIA
provided in Paragraph 2 will result in BRIA's immediate acquisition of
record and beneficial ownership of the Shares, free and clear of all
Encumbrances (which term shall be hereinafter defined as any security
interest, mortgage, lien, charge, adverse claim or restriction of any
kind, including, but not limited to, any restriction on the use,
voting, transfer, receipt of income or other exercise of any attributes
of ownership).
e. AltaChem shall have delivered to BRIA an opinion of its counsel for ACS
and AltaChem, dated within 180 days of this Agreement, to the effect
that the terms of Paragraph 7 herein have been complied with and are in
fact accurate. In rendering such
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opinion, such counsel may rely on certificates of public officials and
upon certificates of officers of AltaChem and ACS and upon opinions of
counsel retained by AltaChem or ACS in states other than Florida,
copies of which certificates and opinions shall be furnished to BRIA.
f. No action or proceeding by any governmental body or agency shall have
been threatened, asserted or instituted to restrain or prohibit the
carrying out of the transactions contemplated by this Agreement.
g. All corporate and other proceedings and action taken in connection with
the transactions contemplated by this Agreement and all certificates,
opinions, agreements, instruments and documents mentioned in this
Paragraph 9 or incident to any such transaction shall be reasonably
satisfactory in form and substance to BRIA and to its counsel.
The conditions contained in this Paragraph 9 are included herein for the
benefit of BRIA and, without constituting a waiver of any of its rights
hereunder, may be waived, in whole or in party, by BRIA.
10. Conditions to Obligations of AltaChem and ACS. The obligations of AltaChem
and ACS under this Agreement are subject to the fulfillment, on or before
the Closing Date, of the following conditions:
a. All representations and warranties of BRIA contained herein and in any
certificate or other instrument delivered pursuant to the provisions
hereof, or in connection with the transactions contemplated hereby,
shall be true on the Closing Date with the same force and effect as
though such representations and warranties had been made on the Closing
Date.
x. XXXX shall have performed and complied with all of the terms, covenants
and conditions of this Agreement to be performed or complied with by it
on or before the Closing Date.
x. XXXX shall have delivered to ACS a certificate of its President or a
Vice President and its Secretary or an Assistant Secretary, dated as of
the Closing Date, certifying in such detail as ACS may reasonably
request the fulfillment of the conditions specified in this Paragraph
10.
d. The Board of Directors of BRIA shall have taken all necessary action to
authorize the execution and performance of this Agreement, including
the delivery of shares of Common Stock of BRIA to ACS in accordance
with this Agreement, and BRIA shall have delivered to ACS true and
complete copies certified by its Secretary or Assistant Secretary, of
resolutions of its Board of Directors evidencing such action.
e. No action or proceeding by any governmental body or agency shall have
been
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threatened, asserted or instituted to restrain or prohibit the carrying
out of the transactions contemplated by this Agreement.
f. All corporate and other proceedings and actions taken in connection
with the transactions contemplated hereby and all certificates,
opinions, agreements, instruments and documents mentioned in this
Paragraph 10 or incident to any such transaction shall be satisfactory
in form and substance to ACS and their counsel.
The conditions contained in this Paragraph 10 are included herein for the
benefit of ACS and, without constituting a waiver of any of its rights
hereunder, may be waived, in whole or in part, by ACS.
11. Certain Covenants Prior to Closing.
a. ACS will use their best efforts, and take such other action as may be
necessary, to fulfill all of the conditions contained in Paragraph 9
hereof and to authorize and consummate, and cause AltaChem to authorize
and consummate, all of the transactions herein contemplated.
x. XXXX will use its best efforts, and take such other action as may be
necessary, to fulfill all of the conditions contained in Paragraph 10
hereof and to authorize and consummate all of the transactions herein
contemplated.
c. Between the date of this Agreement and the Closing Date, AltaChem and
ACS shall (a) give BRIA and its authorized representatives full access
to all offices, warehouses and other facilities and properties of
AltaChem and to the books and records of AltaChem (and permit BRIA to
make copies thereof), (b) permit BRIA to make inspections thereof, and
(c) cause its officers and its advisors (including, without limitation,
its auditors, attorneys, financial advisors and other consultants,
agents and advisors) to furnish BRIA with such financial and operating
data and other information with respect to the business and properties
of AltaChem, and to discuss with BRIA and its authorized
representatives the affairs of AltaChem, all as BRIA may from time to
time reasonably request.
d. Between the date of this Agreement and the Closing Date, AltaChem and
ACS shall give notice to BRIA promptly upon AltaChem or ACS becoming
aware of (a) any inaccuracy of a representation or warranty set forth
in any schedule or (b) any event or status of facts that, if it had
occurred or existed on or prior to the date of this Agreement, would
have caused any such representation and warranty to be inaccurate, with
such notice to describe such inaccuracy, event or status of facts in
reasonable detail.
e. Between the date of this Agreement and the Closing Date, AltaChem and
ACS shall cause (a) copies of all reports and other documents given to
the members of the Board of Directors (or any committee thereof) of
AltaChem to be delivered to BRIA at the
10
same time and (b) copies of the minutes of all meetings of, and actions
taken without a meeting by, the Board of Directors (or any committee
thereof) of AltaChem to be delivered to BRIA promptly after the
preparation thereof. Between the date of this Agreement and the
Closing, AltaChem and ACS shall give BRIA at least 3 days prior notice
of any meeting of or action to be taken without a meeting by, the Board
of Directors or committee thereof of AltaChem and shall cause AltaChem
to permit one individual designated by BRIA to attend each such meeting
as an observer.
f. Between the date of this Agreement and the Closing Date, BRIA, AltaChem
and ACS shall discuss and coordinate with respect to any public filing
or announcement concerning any of the contemplated transactions.
x. XXXX and ACS shall cause AltaChem to, (a) file with applicable
regulatory authorities the applications and related documents required
to be filed by them (and prosecute diligently any related proceedings)
in order to consummate the contemplated transactions and (b) cooperate
with the others as they may reasonably request in connection with the
following.
12. Survival of Representations and Warranties; Indemnification.
a. Survival. All representations, warranties and agreements contained in
this Agreement shall survive the Closing notwithstanding any
investigation conducted with respect thereto; however, a party shall
have no liability with respect to a representation and warranty, or an
agreement to be performed or complied with prior to the Closing Date,
to the extent that the inaccuracy of such representation and warranty
or the failure to perform and comply with such agreement was not
intentional and was disclosed in a schedule delivered pursuant to this
Agreement.
b. Time Limitations. If the Closing occurs, BRIA and ACS shall have no
liability with respect to any representation or warranty, or agreement
to be performed and complied with prior to the Closing Date, other than
those set forth in Paragraphs 4, 7, and 9, unless on or before 210 days
after the date of this Agreement, BRIA, AltaChem or ACS are given
notice asserting a claim with respect thereto and specifying the
factual basis of that claim in reasonable detail to the extent then
known by BRIA. The representations, warranties and agreements in
paragraphs 4, 7 and 9 shall survive the Closing of this Agreement. If
the Closing occurs, BRIA shall have no liability with respect to any
representation or warranty, or agreement to be performed and complied
with prior to the Closing Date, unless on or before 210 days after the
date of this Agreement, BRIA is given notice of a claim with respect
thereto and specifying the factual basis of that claim in reasonable
detail to the extent then known by AltaChem or ACS.
c. Indemnification by AltaChem and ACS. AltaChem and ACS, jointly and
severally, shall indemnify and hold harmless BRIA, and shall reimburse
BRIA for any loss, liability, claim, damage, expense (including, but
not limited to, costs of investigation and defense and reasonable
attorneys' fees) or diminution of value (collectively
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"Damages") arising from or in connection with (a) any inaccuracy in any
of the representations and warranties of AltaChem or ACS in this
Agreement, or any actions, omissions or state of facts inconsistent
with any such representation or warranty, (b) any failure by AltaChem
or ACS to perform or comply with any agreement in this Agreement, (c)
any claim by any person for brokerage or finder's fees or commissions
or similar payments based upon any agreement or understanding alleged
to have been made by any such person with AltaChem or any Shareholder
(or any person acting on their behalf) in connection with any of the
contemplated transactions.
d. Indemnification by BRIA. BRIA shall indemnify and hold harmless
AltaChem and ACS, and shall reimburse AltaChem and ACS for, any Damages
arising from or in connection with (a) any inaccuracy in any of the
representations and warranties of BRIA in this Agreement, or any
actions, omissions or state of acts inconsistent with any such
representation or warranty, (b) any failure by BRIA to perform or
comply with any agreement in this Agreement, or (c) any claim by any
person for brokerage or finder's fees or commissions or similar
payments based upon any agreement or understanding alleged to have been
made by such person with BRIA (or any person acting on its behalf) in
connection with any of the contemplated transactions.
e. Notwithstanding anything hereinabove contained to the contrary in this
Paragraph 12, (i) none of the provisions of this Paragraph 12 shall
apply to any liability (whether by BRIA to one or more of ACS or by one
or more ACS to BRIA) arising out of or by virtue of the Provisions of
Paragraph 13 below or any violation of the provisions of Paragraph 13,
and (ii) the provisions of said Paragraph 13 shall survive the Closing
Date.
13. Investment Representation. Each ACS acknowledges his understanding that
the shares of BRIA Common Stock to be delivered pursuant to this
Agreement will not be registered pursuant to the 1933 Act and each ACS
further represents to and agrees with BRIA as follows:
a. Each ACS is acquiring the shares of BRIA Common Stock pursuant to this
Agreement for his own private personal investment account and with no
present intention of reselling or distributing such shares or any
portion thereof to others.
b. Each ACS fully comprehends that in connection with the issuance of
shares of BRIA Common Stock pursuant to this Agreement, BRIA is relying
to a material degree on the representations, warranties and covenants
contained herein, and with such realization he authorizes BRIA to act
as it may see fit in full reliance hereon.
c. Each ACS agrees that none of such shares will be transferred or
distributed unless (i) they are covered by an effective Registration
Statement prepared in accordance with the 1933 Act and are distributed
in a manner complying with the 1933 Act and with the Rules and
Regulations promulgated thereunder; or (ii) they may be transferred in
accordance with Rule 144 of the Rules and Regulations pursuant to the
1933 Act (or such similar Rule as may be applicable to such shares at
the time of transfer) so long as
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such transfer strictly complies with said Rule 144 and with such
procedures as BRIA may reasonably establish in connection therewith; or
(iii) there is first delivered to BRIA the written legal opinion of
legal counsel in form and substance reasonably satisfactory to BRIA's
legal counsel or a "no action letter" from the SEC indicating that any
of the provisions of the 1933 Act and the Rules and Regulations
promulgated thereunder. In the event such legal opinion is based upon
the exemption now contained in Section 4(2) of the 1933 Act, the person
acquiring the shares or some portion thereof shall execute and deliver
to BRIA a letter agreement complying with the 1933 Act and the Rules
and Regulations promulgated thereunder.
d. Each ACS hereby agrees that the certificate(s) representing such shares
may bear a legend, as set forth below, setting forth the restrictions
upon transfer which are contained in the foregoing subparagraph (c) and
that BRIA may deliver to its transfer agent a "stop transfer order"
directing the transfer agents not to effect any transfer of such shares
without having received the written permission of BRIA and evidence of
compliance with applicable provisions of the 1933 Act and the terms of
this Agreement.
The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") and are
"restricted securities" as that term is defined in Rule 144 under
the Act. The shares may not be offered for sale, sold or otherwise
transferred except pursuant to an effective Registration Statement
under the Act or pursuant to an exemption from registration under
the Act, the availability of which is to be established to the
satisfaction of BRIA.
e. Each ACS hereby agrees to indemnify BRIA against and hold it harmless
from all losses, liabilities, costs and expenses (including reasonable
attorneys' fees) which shall arise as a result of a sale or
distribution by him of such shares or any portion thereof in violation
of the 1933 Act or the terms of this Agreement.
14. Brokers and Finders. ACS represents to BRIA and BRIA represents to ACS
that other than Canton Financial Services Corporation ("Canton"), no
person, firm or corporation has been requested, authorized or employed
by AltaChem, BRIA or any of the ACS to act as finder, broker or agent
in connection with the subject matter of this Agreement or negotiations
leading thereto. In consideration for Canton's services in introducing
the Parties, BRIA and AltaChem agree that BRIA shall deliver to Canton,
in full consideration of and in complete discharge of Canton's finder's
fee, a number of shares of Common Stock of BRIA equivalent to 5% of all
of the issued and outstanding Common Stock of BRIA, as of the Closing
date, to be delivered at the Closing provided for in Paragraph 6
hereof. This quantity of Common Stock shall reflect all other issuances
of Common Stock as settlement of outside debts of BRIA.
15. Further Assurances.
a. At the request of BRIA, and without further consideration, AltaChem and
ACS will
13
execute and deliver such additional instruments of transfer and will
take such other action as BRIA reasonably may request in order more
effectively to transfer to BRIA full ownership and control of AltaChem.
b. At the request of one or more of ACS, and without further
consideration, BRIA will execute and deliver such additional
instruments and will take such other actions as ACS may reasonably
request in order more effectively to carry out the transaction
contemplated hereby.
16. Expenses. AltaChem shall bear all out-of-pocket expenses arising from
this Agreement, including but not limited to, travel, lodging, filing
fees, printing, postage, delivery, shipping, copying, telephone calls,
overnight packages, facsimiles, and other related expenses.
17. Employees of AltaChem. BRIA agrees to maintain the employment of all of
AltaChem's employees in their present positions, with the same salary
and seniority.
18. Directors. All directors of AltaChem whose resignations shall have been
requested by BRIA not less than five days before the Closing Date shall
have submitted their resignations or been removed effective as of the
Closing Date. Xx-Xxxxxxxxx and Xxxxxx shall have been appointed as
directors of BRIA prior to or on the Closing Date.
19. Other Matters.
a. No Other Agreements. All terms and conditions of this Agreement are set
forth herein, and there are no warranties, agreements or
understandings, express or implied, except those expressly set forth
herein.
b. Amendment. This Agreement may be amended only by a written instrument
executed on behalf of BRIA, AltaChem and ACS; provided, however, that
after the closing provided for herein BRIA and ACS may amend this
Agreement without the execution or approval of AltaChem.
c. Notices. Any notice or other communication required or permitted to be
given hereunder shall be deemed properly given if personally delivered
or deposited in the United States mail, registered or certified and
postage prepaid, addressed to AltaChem or ACS at 00-00 Xxxxxx Xxxxxx,
Xxx Xxxxxxx, XX 00000 or to BRIA at 000 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx
Xxxx Xxxx, XX 00000, or at such other addresses as may from time to
time be designated by the respective parties in writing.
d. Specific Performance. The parties acknowledge that the subject matter
of this Agreement (i.e., the business and assets of AltaChem) is unique
and that no adequate remedy of law would be available for breach of
this Agreement. Accordingly, each party agrees that the other parties
will be entitled to an appropriate decree of specific performance or
other equitable remedies to enforce this Agreement (without any bond
14
or other security being required) and each party waives the defense in
any action or proceeding brought to enforce this Agreement that there
exists an adequate remedy at law.
e. Termination.
i. Termination for Default. Without prejudice to other rights and
remedies which a party may have, either party may by notice to the
other given on or at any time prior to the Closing Date terminate
this Agreement if default should be made by the other party in the
observance or in due and timely performance of any of its
covenants and agreements herein contained and if such default
shall not have been fully cured within fifteen (15) days after
receipt of such notice specifying with particularity such default.
ii. Termination for Delay. Without prejudice to other rights and
remedies which a party may have, if the closing shall not have
occurred by December 31, 1995, at 5:00 p.m., Eastern Standard Time
a party who is not then in default in the observance or in the due
and timely performance of any of its covenants and agreements
herein contained, may at any time thereafter terminate this
Agreement by giving written notice of such termination to the
other party.
iii. Termination for Non-compliance. BRIA shall have the right to
terminate this Agreement if it is determined at any time that
AltaChem's financial statements are not, as of the Closing Date,
in conformity with the requirements of Paragraph 7(e) herein.
f. Assignment. Except as specifically permitted by the terms of this
Agreement, neither this Agreement nor any right created hereby shall be
assignable by BRIA. AltaChem or ACS (or their respective successors in
interest) without the prior written consent of all other parties
hereto, and any such attempted assignment shall be void. Nothing in
this agreement, expressed or implied, is intended to confer upon any
person, other than the parties hereto, any rights or remedies under or
by reason of this Agreement. Notwithstanding any other provisions
herein to the contrary, the right of each of ACS to receive shares of
BRIA Common Stock pursuant to Paragraph 2 herein shall not be
assignable except upon the death of such Shareholder by testamentary
disposition or the law of intestate succession.
g. Paragraphs and Other Headings. Paragraphs or other headings contained
in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
h. Choice of Law. It is the intention of the parties that the laws of the
State of Utah should govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and
duties of the parties.
15
i. No Waiver. The failure of any party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a
waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement. Any
waiver must be in writing.
j. Severability. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable, the same shall not affect any other
provisions of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provisions had never been
contained herein.
k. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
BRIA Communications Corp. AltaChem Group, Inc., Ireland
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx, President By: Xxxxx Xxxxxx
Title: President
ACS
Xxxxx Xxxxxx
/s/ Xxxxx Xx-Xxxxxxxxx
By: Xxxxx Xx-Xxxxxxxxx /s/ Xxxxx Xxxxxx
Title: Authorized Representative Xxxxx Xxxxxx
Xxxxx Xx-Xxxxxxxxx
/s/ Xxxxx Xx-Xxxxxxxxx
Xxxxx Xx-Xxxxxxxxx
