AGREEMENT AND PLAN OF ACQUISITION
BY AND AMONG
THE ▇▇▇▇▇ ▇. CORP.
AND
FRAMA S.r.l.
AGREEMENT AND PLAN OF ACQUISITION
AGREEMENT AND PLAN OF ACQUISITION by and between The ▇▇▇▇▇ ▇. Corp. , a
Nevada corporation,("▇▇▇▇▇") and Frama S.r.l., an Italian
corporation,("Frama").
WHEREAS, the Boards of Directors of ▇▇▇▇▇ and Frama, deem it advisable
for the mutual benefit of ▇▇▇▇▇ and Frama, and their respective shareholders,
that Frama be acquired by ▇▇▇▇▇ (the "Acquisition"), and have approved this
Agreement and Plan of Acquisition (the "Agreement"); and
WHEREAS, the Boards of Directors of ▇▇▇▇▇ and Frama have unanimously
resolved to recommend to their shareholders acceptance of the Acquisition
contemplated herein.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, and for the purpose of
setting forth certain terms and conditions of the Acquisition, and the mode of
carrying the same into effect, Frama and ▇▇▇▇▇ hereby agree as follows:
ARTICLE 1
ACQUISITION AND ORGANIZATION
SECTION 1.1 The Acquisition. As of the Effective Date (as hereinafter
defined), subject to the terms and conditions hereof, Frama shall be merged
with and into ▇▇▇▇▇ as soon as practicable through Brian's acquisition of 100%
of Frama's issued and outstanding shares of Common Stock in exchange for
shares of Common Stock of ▇▇▇▇▇, the parent company (the "Parent Company").
At the time of this Acquisition, Frama shall have a minimum of $50,000.00 U.S.
in capital and income of at least $75,000.00 for the current year with
exception of that same income as a minimum for the next year. Immediately
after consummation of the Acquisition, the Parent Company shall be and
continue as the public entity, and shall have issued and outstanding 281,915
shares of Common Stock; 149,415 (representing 53% of the Parent Company) to be
held by former Frama stockholders in proportion to the amount that each of
said shareholders previously held shares of Common Stock of Frama, and 132,500
(representing 47% of the Parent Company) to be held by current ▇▇▇▇▇
stockholders. Of the 149,415 shares of ▇▇▇▇▇ to be issued to former Frama
shareholders, 29,000 shall be held in escrow until December 31, 1997 or sooner
if the sales figures are obtained as stated herein. Until that time, the
former Frama Shareholders will hold 120,415 shares of common stock
(representing 47% of the Parent Company). If on or before December 31, 1997
Brian's consolidated financials reach revenues of a minimum of $5,000,000.00,
the escrowed shares shall be released from escrow to the former Frama
Shareholders. Furthermore, if on or before December 31, 1997,▇▇▇▇▇' sales on a
consolidated basis, reach or exceed $5,000,000.00, the 120,000 shares held by
the insider shareholders will be reduced to 50,000. The remaining 70,000 will
be apportioned as follows: 15,000 shares to ▇▇▇▇-▇▇▇▇▇ ▇▇▇; 15,000 shares to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; 30,000 shares to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and 10,000 shares to
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇. In the event Brian's sales, on a consolidated basis , does not reach
$5,000,000.00 during the calendar year of 1997 by December 31, 1997, the
escrowed shares shall be returned to the treasury of ▇▇▇▇▇ . ▇▇▇▇▇ and Frama
are herein sometimes referred to as the "Constituent Corporations." The
Acquisition is to be done in such a manner as to be tax-free to all parties
involved.
SECTION 1.2. Effect of Acquisition. The parties agree to the following
provisions with respect to the Acquisition:
(a) Name of Surviving Corporation. After the Acquisition and
Effective Date (as defined in Section 1.2(f) hereof), both entities may retain
their respective names.
(b) Articles of Incorporation. The Articles of Incorporation of
each constituent corporation as in effect immediately prior to the Effective
Date shall from and after the Effective Date be and continue to be the
Articles of Incorporation of the respective constituent corporations until
changed or amended as provided.
(c) By-Laws. The By-Laws of each constituent corporation as in
effect immediately prior to the Effective Date shall from and after the
Effective Date be and continue to be the By-Laws of the respective constituent
corporations until changed or amended as provided by law.
(d) Corporate Organization. All of the issued and outstanding
shares of common stock of Frama shall be acquired by ▇▇▇▇▇. The Parent
Company shall thenceforth be responsible for all the liabilities and
obligations of each of the Constituent Corporations, with the effect set forth
in the appropriate provisions of Nevada law and the appropriate provisions of
Italian law.
(e) Filing of Articles of Acquisition and Amendment to Articles of
Association. If this Agreement is duly approved by each of the Constituent
Corporations in accordance with the appropriate provisions of Nevada law and
the appropriate provisions of Italian law and the respective Articles or
Certificate of Incorporation and By-laws of the Constituent Corporations and
not terminated pursuant to Article 8 hereof, and approved by the shareholders
of ▇▇▇▇▇ pursuant to Rule 419 under Regulation C of the Securities Act of
1933, as amended ("Rule 419"), as soon as practicable after all other
conditions to the Acquisition set forth in Article 6 hereof shall have been
satisfied or waived, and after Brian's Post-Effective Amendment filed pursuant
to Rule 419 has been declared effective by the Securities and Exchange
Commission and Brian's shareholder reconfirmation has been successfully
completed and the closing of this Agreement (the "Closing") has taken place,
the Acquisition shall be consummated and Articles of Acquisition, to which
this Agreement shall be appended, shall be filed with the appropriate Italian
governmental agency and an amendment to Brian's Articles of Association shall
be filed with the Nevada Secretary of State. The Closing of this Agreement
shall take place at the offices of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other time, place or date as the
parties may mutually agree.
(f) Further Assurances. If at any time after the Effective Date,
the Parent Company shall consider or be advised that any deeds, bills of sale,
assignments or assurances or any other acts or things are necessary, desirable
or proper (a) to vest, perfect or confirm, of record or otherwise, in the
Parent Company, its right, title or interest in, to or under any of the
rights, properties or assets of the Constituent Corporations acquired or to be
acquired as a result of the Acquisition, or (b) otherwise to carry out the
purposes of this Agreement, the Constituent Corporations agree that the Parent
Company and its proper officers and directors shall be authorized to execute
and deliver, in the name and on behalf of the Constituent Corporations, all
such deeds, bills of sale, assignments and assurances and do, in the name and
on behalf of the Constituent Corporations, all such other acts and things
necessary, desirable or proper to best, perfect or confirm its right, title or
interest in, to or under any of the rights, properties or assets of the
Constituent Corporations acquired or to be acquired as a result of the
Acquisition and otherwise to carry out the purposes of this Agreement.
ARTICLE 2
THE ACQUISITION
SECTION 2.1 Conversion of Shares in the Acquisition.
(a) Issuance of New Shares. On the Effective Date, and upon the
acquisition of 100% of all shares of Common Stock of Frama, ▇▇▇▇▇ shall issue
149,415 shares of its authorized Common Stock to former Frama share holders,
in the same proportion said share holders held shares of Common Stock of
Frama. ▇▇▇▇▇ shareholders shall retain their holdings which, however, will
become diluted with the issuance of the additional share of stock. All those
▇▇▇▇▇ shares to be issued and outstanding immediately following the Effective
Date shall be registered pursuant to a registration statement to be filed
concurrently with and as part of the Post-Effective Amendment. Thus, after
the Effective Date, the Parent Company shall have 281,915 shares of common
stock issued and outstanding.
(b) On the Effective Date, 29,000 of 149,415 shares of Common Stock,
shall be held in escrow until December 31, 1997. Until that time, the former
Frama Shareholders will hold 120,415 shares of common stock (representing 48%
of the Parent Company).
(c) If on or before December 31, 1997, Brian's revenues on a
consolidated basis, reach or exceed $5,000,000.00, the escrowed shares shall
be released from escrow to the former Frama Shareholders.
(d) If on or before December 31, 1997, Brian's revenues on a
consolidated basis, reach or exceed $5,000,000.00, the 120,000 shares held by
the insider shareholders will be reduced to 50,000. The remaining 70,000 will
be apportioned as follows: 15,000 shares to ▇▇▇▇-▇▇▇▇▇ ▇▇▇; 15,000 shares to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; 30,000 shares to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and 10,000 shares to
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
(e) In the event Brian's revenues on a consolidated basis, do not
reach $5,000,000.00 by December 31, 1997, the escrowed shares shall be
returned to the treasury of the Parent Company.
(f) On the Effective Date, Frama shall have a minimum of $50,000.00
in capital and sales of $75,000.00 per annum.
SECTION 2.2 Further Transfer of Stock. The former Frama stockholders
and the consultants hired by Frama prior to this transaction may distribute
their shares of the Parent Company as they determine in accordance with any
and all applicable state and federal securities laws, and shall provid counsel
to ▇▇▇▇▇ with a list at the time of closing for delivery to the transfer
agent.
SECTION 2.3 Release of Shares and Funds from Escrow.
Pursuant to Rule 419, certificates representing the shares of Common
Stock purchased in Brian's initial public offering which offering was declared
effective by the S.E.C. on October 23, 1995, as well as the funds used to
purchase said shares, are being held in escrow pending consummation of a
Acquisition (the "Deposited Securities" and the "Deposited Funds,"
respectively). ▇▇▇▇▇ has eighteen (18) months in which to consummate a
Acquisition. If a Acquisition is not consummated within that time, the
Deposited Securities and Deposited Funds shall be returned to ▇▇▇▇▇ and ▇▇▇▇▇
shareholders, respectively. Pursuant to Rule 419, Deposited Securities shall
be released to shareholders and Deposited Funds released to ▇▇▇▇▇ following
effectiveness of a Post-Effective Amendment and a reconfirmation offering
pursuant to which ▇▇▇▇▇ shareholders representing a minimum of 80% of the
offering proceeds of Brian's initial public offering ($40,000) reconfirm their
investments.
SECTION 2.4 Surrender of Certificates. ▇▇▇▇▇ has designated Oxford
Transfer Agency, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as
Transfer Agent (the "Transfer Agent") hereunder. Immediately following
effectiveness of the Post-Effective Amendment and shareholder reconfirmation
offering, the Transfer Agent shall have mailed and/or made available to each
▇▇▇▇▇ shareholder and each former Frama shareholder notice and letter of
transmittal advising such holder of the effectiveness of the Post-Effective
Amendment and shareholder reconfirmation, and the procedure for surrendering
Frama stock to the Transfer Agent. Frama shall immediately turn in Frama
common stock certificates to the Transfer Agent. Upon the surrender to the
Transfer Agent of such certificates, together with a letter of transmittal,
duly executed and completed in accordance with the instructions thereon, the
Transfer Agent shall promptly convert and issue an aggregate of 149,415 shares
of ▇▇▇▇▇ common stock to former Frama shareholders in exchange for 100% of the
authorized and outstanding shares of Frama. Until so surrendered and
exchanged, each certificate theretofore representing shares shall represent in
the case of Dissenter's Shares, the right to seek appraisal pursuant to the
laws of the state of incorporation of the Constituent Corporation in which the
holder owns stock (if such right has been perfected).
SECTION 2.5 Transfer Agent. Prior to the Offering, ▇▇▇▇▇ shall have
made such arrangements to insure that an adequate number of its shares of
Common Stock have been deposited with the Transfer Agent as necessary in
sufficient time to permit prompt distribution against surrender of Frama stock
certificates as provided hereunder.
SECTION 2.6 Dissenters' Rights. Dissenters' Shares shall not be
converted into the right to receive Common Stock as provided herein unless and
until the holder of such shares withdraws his or her demand for such appraisal
or becomes ineligible for such appraisal, pursuant to the laws of the state of
incorporation of the Constituent Corporation in which the holder owns stock
(if such right has been perfected).
ARTICLE 3
ADDITIONAL AGREEMENTS IN CONNECTION WITH THE MERGER
SECTION 3.1 Confidentiality; Inconsistent Activities. Unless and until
this Agreement has been terminated in accordance with its terms, neither Frama
nor ▇▇▇▇▇ will (i) solicit or encourage, directly or indirectly, any inquiries
or proposals to acquire any
shares of capital stock of Frama or ▇▇▇▇▇ or any significant portion of the
total assets of either Constituent Corporation or any subsidiary or division
of either of the Constituent Corporations (whether by merger, purchase of
assets, tender offer or other similar transaction); (ii) afford any third
party which may be considering the acquisition of any shares of capital stock
of Frama or ▇▇▇▇▇ or any significant portion of the total assets of either
Constituent Corporation, access to the properties, books or records of either
Constituent Corporation except as required by mandatory provisions of law; or
(iii) enter into any discussions or negotiations for, or enter into any
agreement which provides for, the sale of any shares of capital stock of Frama
or ▇▇▇▇▇ or any significant portion of the total assets of Frama or ▇▇▇▇▇ to a
person other than in connection with the transactions contemplated herein.
SECTION 3.2 Reasonable Efforts. Subject to the terms and conditions
hereof, each of the parties hereto agrees to use any and all reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary to satisfy the other conditions of Closing set
forth herein.
SECTION 3.3 Conduct of Business by Each of the Constituent Corporations
Pending the Acquisition. Frama and ▇▇▇▇▇ covenant and agree that, prior to
the Effective Date, unless Frama or ▇▇▇▇▇, respectively, shall otherwise agree
in writing and except as contemplated by this Agreement:
(a) the business of each of the Constituent Corporations shall be
conducted only in the ordinary and usual course and consistent with its past
practice, and neither Frama nor ▇▇▇▇▇ shall purchase or sell (or enter into
any agreement to so purchase or sell) any properties or assets or make any
other changes in the operations of Frama or ▇▇▇▇▇, respectively, taken as a
whole;
(b) Neither Constituent Corporation shall (i) amend its Articles of
Incorporation or By-Laws, (ii) change the number of authorized or outstanding
shares of its capital stock, except as set forth in Section 2 hereof, or (iii)
declare, set aside or pay any dividend or other distribution or payment in
cash, stock or property in respect of the Shares;
(c) Neither Constituent Corporation shall (i) issue, grant, sell or
pledge or agree or propose to issue, grant, sell or pledge any shares of, or
rights of any kind to acquire any shares of, its capital stock (ii) incur any
indebtedness other than in the ordinary course of business, (iii) acquire
directly or indirectly by redemption or otherwise any shares of its capital
stock of any class or (iv) enter into or modify any contact, agreement,
commitment or arrangement with respect to any of the foregoing.
(d) Each Constituent Corporation shall use its best efforts to
preserve intact its business organizations, to keep available the services of
it and its current officers and key employees, and to preserve the good will
of those having business relationships with it.
(e) Frama and ▇▇▇▇▇ will not (i) increase the compensation payable
or to become payable by it to any of its officers or directors, (ii) make any
payment or provision with respect to any bonus, profit sharing, stock option,
stock purchase, employee stock ownership, pension, retirement, deferred
compensation, employment or other payment plan, agreement or arrangement for
the benefit of its employees, (iii) grant any stock options or stock
appreciation rights or permit the exercise of any stock appreciation right
where the exercise of such right is subject to its discretion, (iv) make any
change in the compensation to be received by any of its officers, or adopt, or
amend to increase compensation or benefits payable under, any collective
bargaining, bonus, profit sharing, compensation, stock option, pension,
retirement, deferred compensation, employment, termination, severance or other
plan, agreement, trust, fund or arrangement for the benefit of employees, (v)
enter into any agreement with respect to termination or severance pay, or any
employment agreement or other contract or arrangement with any officer or
director or employee of Frama or ▇▇▇▇▇, respectively, with respect to the
performance of personal services that is not terminable without liability by
it on thirty days' notice or less, (vi) increase benefits payable under its
current severance or termination pay agreements or policies or (vii) make any
loan or advance to, or enter into any written contract, lease or commitment
with, any of its officers or directors;
(f) Neither Frama nor ▇▇▇▇▇ shall assume, guarantee, endorse or
otherwise become responsible for the obligations of any other individual, firm
or corporation or make any loans or advances to any individual, firm or
corporation;
(g) Neither Frama nor ▇▇▇▇▇ shall make any investment of a capital
nature either by purchase of stock or securities, contributions to capital,
property transfers or otherwise, or by the purchase of any property or assets
of any other individual, firm or corporation;
(h) Neither Frama nor ▇▇▇▇▇ shall reduce its cash or short term
investments or their equivalent, other than to meet cash needs arising in the
ordinary course of business, consistent with past practices, or in performing
its obligations under this Agreement; and
(i) Neither Frama nor ▇▇▇▇▇ shall enter into an agreement to do any
of the things described in clauses (a), (b), (c), (e), (f), (g) and (h).
SECTION 3.4 Access and Information.
(a) Frama shall afford to ▇▇▇▇▇ and its accountants, counsel and
other representatives full access, during normal business hours throughout the
period prior to the Effective Date, to all of the properties, books,
contracts, commitments and records (including but not limited to tax returns)
of Frama and, during such period, Frama shall furnish promptly to ▇▇▇▇▇ (i) a
copy of each report, schedule and other document filed or received by it
pursuant to the requirements of federal or state securities laws, and (ii) all
other information concerning the business, properties and personnel of Frama
that may reasonably be requested. In the event of the termination of this
Agreement, ▇▇▇▇▇ will, and will cause its representatives to, deliver to Frama
all documents, work papers and other material, and all copies thereof,
obtained by it or on its behalf from Frama as a result of this Agreement or in
connection herewith, whether so obtained before or after the execution hereof,
and will hold in confidence all confidential information, and will not use any
such confidential information, until such time as such information is
otherwise publicly available or as it is advised by counsel that any such
information or document is required by law to be disclosed. If this Agreement
is terminated, ▇▇▇▇▇ will deliver to Frama all documents so obtained by it.
(b) ▇▇▇▇▇ shall afford to Frama and its accountants, counsel and
other representatives full access, during normal business hours throughout the
period prior to the Effective Date, to all of the properties, books,
contracts, commitments and records (including but not limited to tax returns)
of ▇▇▇▇▇ and, during such period, ▇▇▇▇▇ shall furnish promptly to Frama (i) a
copy of each report, schedule and other document filed or received by it
pursuant to the requirements of federal or state securities laws, and (ii) all
other information concerning the business, properties and personnel of ▇▇▇▇▇
that may reasonably be requested. In the event of the termination of this
Agreement, Frama will, and will cause its representatives to, deliver to ▇▇▇▇▇
all documents, work papers and other material, and all copies thereof,
obtained by it or on its behalf from ▇▇▇▇▇ as a result of this Agreement or in
connection herewith, whether so obtained before or after the execution hereof,
and will hold in confidence all confidential information, and will not use any
such confidential information, until such time as such information is
otherwise publicly available or as it is advised by counsel that any such
information or document is required by law to be disclosed. If this Agreement
is terminated, Frama will deliver to ▇▇▇▇▇ all documents so obtained by it.
SECTION 3.5 Notice of Actions and Proceedings. Frama shall promptly
notify ▇▇▇▇▇, and ▇▇▇▇▇ shall promptly notify Frama of any claims, actions,
proceedings or investigations commenced or, to the best of its knowledge,
threatened, involving or affecting Frama or ▇▇▇▇▇ or any of their property or
assets, or, to the best of its knowledge, against any employee, consultant,
director, officer or shareholder, in his, her or its capacity as such, of
Frama or ▇▇▇▇▇ which, if pending on the date hereof, would have been required
to have been disclosed in writing pursuant to Section 4.4 hereof or which
relates to the consummation of the Acquisition or the transactions
contemplated hereby.
SECTION 3.6 Notification of Other Certain Matters. Frama shall give
prompt notice to ▇▇▇▇▇, and ▇▇▇▇▇ shall give prompt notice to Frama of:
(a) any notice of, or other communication relating to, a default or
event which, with notice or lapse of time or both, would become a default,
received by Frama or ▇▇▇▇▇ subsequent to the date of this Agreement and prior
to the Effective Date, under any agreement, indenture or instrument material
to the financial condition, properties, business or results of operations of
Frama or ▇▇▇▇▇ taken as a whole to which Frama or ▇▇▇▇▇ is a party or is
subject;
(b) any notice or other communication from any third party alleging
that the consent of such third party is or may be required in connection with
the transactions contemplated by this Agreement; and
(c) any material adverse change in the financial condition,
properties, businesses or results or operations of Frama or ▇▇▇▇▇, or the
occurrence of an event which, so far as reasonably can be foreseen at the time
of its occurrence, would result in any such change.
SECTION 3.7 Stockholder Meeting of Frama. Frama shall, at a meeting of
its stockholders duly called by the Board of Directors of Frama, to be held as
soon as practicable following execution of this Agreement, present the
following proposals for the authorization and approval of the stockholders of
Frama and recommend their adoption by the stockholders:
a) ratification of this Agreement and authorization of the
consummation of the Acquisition contemplated herein;
SECTION 3.8 Filing of Post-Effective Amendment. Upon signing this
Acquisition Agreement and shareholder approval pursuant to a special meeting
of shareholders, ▇▇▇▇▇ shall promptly file with the Securities and Exchange
Commission a Post-Effective Amendment reflecting the Acquisition as required
by Rule 419.
SECTION 3.9 Reconfirmation Offering. Within five (5) days of
effectiveness of the Post-Effective Amendment, ▇▇▇▇▇ shall issue a
reconfirmation offering to its shareholders. Pursuant to Rule 419, the
Acquisition will be consummated only if a minimum number of investors
representing 80% of the maximum offering proceeds of Brian's initial public
offering ($40,000) elect to reconfirm their investments.
SECTION 3.10 Other Agreements of ▇▇▇▇▇. ▇▇▇▇▇ shall file with the SEC
any appropriate statements or requirements within the Securities Exchange Act
of 1934, as amended, with respect to the Acquisition, obtain any consents,
amendments to or waivers under the terms of any of Brian's arrangements
required by the transactions contemplated by this Agreement, and defend any
lawsuits or other legal proceedings, whether judicial or administrative and
whether brought derivatively or on behalf of third parties (including
governmental agencies or officials), challenging this Agreement, or the
consummation of the transactions contemplated hereby (provided that the
maximum amount that ▇▇▇▇▇ shall be required to spend on such lawsuits or
proceedings shall be $5,000 in the aggregate).
SECTION 3.11 ▇▇▇▇▇ Stockholder Consent. ▇▇▇▇▇ shall obtain written
consent of two-thirds of its shareholders to take the following actions:
a) ratification of this Agreement and authorization of the
consummation of the Acquisition contemplated herein;
b) issuance of 149,415 shares of ▇▇▇▇▇ common stock to former
Frama shareholders;
d) the tender of resignations of the directors of ▇▇▇▇▇, whose
resignations are contingent on the consummation of this acquistion. If on
December 31, 1997, Brian's sales, on a consolidated basis, do not reach or
exceed $5,000,000.00 for the calendar year of 1997, Brian's directors as of
that date, shall tender their resignations and the previous directors shall be
reinstalled as directors of ▇▇▇▇▇. ARTICLE 4
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ▇▇▇▇▇
▇▇▇▇▇ represents and warrants to, and agrees with Frama as follows:
SECTION 4.1 Organization and Good Standing. ▇▇▇▇▇ is a duly
incorporated and validly existing corporation in good standing under the laws
of the state of its incorporation, with all requisite power and authority
(corporate and other) to own its properties and conduct its business, and is
duly qualified and in good standing as a foreign corporation authorized to do
business.
SECTION 4.2 Authorization; Binding Agreement. ▇▇▇▇▇ has the corporate
power and authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by ▇▇▇▇▇, and subject to any requisite
approval of the Acquisition by the shareholders of ▇▇▇▇▇, including a
shareholder reconfirmation pursuant to Rule 419, constitutes a valid and
binding agreement of ▇▇▇▇▇ in accordance with its terms.
SECTION 4.3 Capitalization. The authorized capital stock of ▇▇▇▇▇
consists of 10,000,000 shares of common stock, par value $.0001 per share. On
January 26, 1995, shares of Common Stock were issued to seven (7) insider
shareholders. Brian's public offering, whereby 12,500 shares of Common Stock
were sold at $4.00 per share, closed on July 31, 1995. As of the date hereof,
132,500 shares of common stock are outstanding. All of the outstanding shares
of capital stock of ▇▇▇▇▇ have been duly authorized and validly issued and are
fully paid and nonassessable. ▇▇▇▇▇ is not aware of any voting trusts, voting
agreements or similar understandings applicable to the Shares. ▇▇▇▇▇ does not
have any outstanding options, subscriptions or other rights, agreements or
commitments, which either; (a) obligates ▇▇▇▇▇ to issue, sell or transfer any
shares of the capital stock of ▇▇▇▇▇ or (b) restricts the transfer of or
otherwise relates to the shares of its Common Stock.
SECTION 4.4 Litigation. Except as may be disclosed in the SEC Filings
(as defined in Section 4.5 hereof), or to Frama in writing on or prior to the
date hereof, as of the date hereof there are no claims, actions, proceedings,
or investigations pending or, to the best knowledge of ▇▇▇▇▇, threatened
against ▇▇▇▇▇ or to the best of ▇▇▇▇▇ knowledge, pending or threatened against
any employee, consultant, director, officer or shareholder, in his, her or its
capacity as such, before any court or governmental or regulatory authority or
body which, if decided adversely, could materially and adversely affect the
financial condition, business, prospects or operations of ▇▇▇▇▇. As of the
date hereof, neither ▇▇▇▇▇ nor any of its property is subject to any order,
judgment, injunction or decree, which materially and adversely affects the
financial condition, business, prospects or operations of ▇▇▇▇▇.
SECTION 4.5 Financial Statements and Reports. ▇▇▇▇▇ has provided Frama
with true and complete copies of (a) Brian's Quarterly Reports on Form ▇▇-▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ , , , (▇) copies of
Brian's Registration Statement on Form SB-2 and Prospectus which was declared
effective by the S.E.C. on October 23, 1995, (d) all other reports, statements
and registration statements filed by it with the SEC since October 23, 1995.
The reports, statements and registration statements referred to in the
immediately preceding sentence including any that are filed subsequent to the
date hereof and prior to the effective date are referred to in the Agreement
as the "SEC Filings." As of their respective dates, the SEC Filings did not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances under which they were made, not misleading. The
financial statements of ▇▇▇▇▇ included in the SEC Filings were prepared by an
independent certified public accountant in accordance with generally accepted
accounting principles applied on a consistent basis (except as otherwise noted
in such statements) and present fairly the financial position, results of
operations and changes in financial position of ▇▇▇▇▇ as of the dates and for
the periods indicated subject, in the case of unaudited interim financial
statements, to normal year-end adjustments and any other adjustments described
therein. ▇▇▇▇▇ will have approximately $40,000, consisting of the proceeds
from Brian's initial public offering, currently held in escrow, on deposit in
a bank duly licensed to do business in the State, pursuant to Rule 419 on the
Effective Date.
SECTION 4.6 Absence of Certain Changes or Events. Except as set forth
in the SEC Filings, or as disclosed to Frama in writing, (a) there has not
been any change or any development involving a prospective change, which has
affected or may affect materially and adversely the business, assets or
prospects or the financial position or the results of operations of and its
subsidiaries taken as whole; and (b) ▇▇▇▇▇ has not incurred any indebtedness
for money borrowed, or purchased or sold any material amount of assets, other
than in the ordinary course of business, or entered into any other transaction
other than in the ordinary course of business.
SECTION 4.7 Absence of Breach. Except as may be disclosed to Frama in
writing on or prior to the date hereof, the execution, delivery and
performance by ▇▇▇▇▇ of this Agreement, and the performance by ▇▇▇▇▇ of its
obligations hereunder, will not
(a) subject to the appropriate approval by Brian's shareholders,
conflict with or result in a breach of any of the provisions of its Articles
of Incorporation or By-Laws;
(b) subject to obtaining the governmental and other consents
referred to in Section 4.8 hereof, contravene any law, rule or regulation of
any state or of the United States or any political subdivision thereof or
therein, or any order, writ, judgment, injunction, decree, determination or
award currently in effect, which, singly or in the aggregate, would have a
material adverse effect on ▇▇▇▇▇;
(c) conflict in any respect with or result in a breach of or
default under any indenture, loan or credit agreement relating to money
borrowed or (iv) conflict in any respect with or result in a breach of or
default under any other indenture, mortgage, lien, lease, agreement, contract
or instrument to which ▇▇▇▇▇ is a party or by which it or any of its
properties may be affected or bound, which, singly or in the aggregate, would
have a material adverse effect on ▇▇▇▇▇.
SECTION 4.8 Governmental and Other Consents, etc. Subject to the
requisite shareholder approval and any required filings with the Securities
and Exchange Commission, no consent, waiver, approval, license or
authorization of or designation, declaration or filing with any governmental
agency or authority or other public persons or entities in the United States
on the part of ▇▇▇▇▇ is required in connection with the execution or delivery
by ▇▇▇▇▇ of his Agreement or the consummation by the Company of the
transactions contemplated hereby other than (i) filings in the State of Nevada
in accordance with state law thereof and in Italy in accordance with Italian,
(ii) filings under state securities, "Blue Sky" or anti-takeover laws and
(iii) filings with the SEC and any applicable national securities exchange.
SECTION 4.9 Benefits Plans. Except as disclosed in the SEC Filings or
as disclosed in writing to Frama before the date hereof, ▇▇▇▇▇ does not have
any employment agreement with any executive officer of ▇▇▇▇▇ or any incentive
compensation, deferred compensation, profit sharing, stock option, stock
bonus, stock purchase, savings, consultant, retirement, pension or other
"fringe benefit" plan or arrangement with or for the benefit of any officer,
employee, former employee or consultant.
SECTION 4.10 Certain Contracts. Except as disclosed in the SEC Filings
or as disclosed in writing to Frama on or prior to the date hereof, ▇▇▇▇▇ is
not a party to any collective bargaining agreement or any other agreement with
employees of ▇▇▇▇▇ or any of the subsidiaries as a group.
SECTION 4.11 ERISA. ▇▇▇▇▇ has no employee benefit plans, as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
SECTION 4.12 Transactions With Management. Except as disclosed in the
SEC Filings or to Frama in writing on or before the date hereof, ▇▇▇▇▇ is not
now a party to any material contract, lease, loan or commitment with or to any
officer or director, or person owning more than 5% of the outstanding Common
Stock of ▇▇▇▇▇ or any subsidiary of ▇▇▇▇▇ or any affiliate or associate of
such officer, director or person.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF FRAMA
Frama, represent and warrants to, and agrees with ▇▇▇▇▇ as follows:
SECTION 5.1 Organization and Good Standing. Frama is a duly
incorporated and validly existing corporation in good standing under the laws
of the nation of Italy, with all requisite power and authority (corporate and
other) to own its properties and conduct its businesses.
SECTION 5.2 Authorization; Binding Agreement. Frama has the requisite
corporate power and authority to execute and deliver this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by
Frama and constitutes a valid and binding agreement of Frama in accordance
with its terms.
SECTION 5.3 Absence of Breach. The execution, delivery and performance
by Frama of this Agreement, and the performance by Frama of its obligations
hereunder, do not (i) conflict with or result in a breach of any of the
provisions of its articles of incorporation or by-laws, (ii) subject to
obtaining the governmental and other consents referred to in Section 5.4
hereof, contravene any law, rule or regulation of any state or of the United
States or any political subdivision thereof or therein, or any order, writ,
judgment, injunction, decree, determination or award currently in effect,
which, singly or in the aggregate, would have a material adverse effect on
Frama, (iii) conflict in any respect with or result in a breach of or default
under any indenture, loan or credit agreement (appropriate waivers having been
obtained) or any other agreement or instrument to which Frama is a party or by
which Frama properties may be affected or bound, which, singly or in the
aggregate, would have a material adverse effect on Frama.
SECTION 5.4 Governmental and Other Consents, etc. Subject to the
requisite Board of Directors approval, no material consent, approval or
authorization of or designation, declaration or filing with any governmental
agency or authority or other public persons or entities in the United States
or Italy on the part of Frama is required in connection with the execution
delivery by Frama of this Agreement or the consummation by Frama of the
transaction contemplated hereby other than (i) filings in the state of Nevada
in accordance with the laws of that state and in Italy in accordance with the
laws of that nation, thereof, (ii) filings under state securities, "Blue Sky"
or anti-takeover laws, and (iii) filings with the SEC and any applicable
national securities exchange.
SECTION 5.5. Financial Statements. Frama shall provide ▇▇▇▇▇ with
certified consolidated financial statements (including the notes thereto)
which have been prepared by an independent certified public accountant in
accordance with generally accepted accounting principles (as in effect from
time to time) applied on a consistent basis and which present fairly the
consolidated financial position, results of operations and changes in
financial position of Frama.
SECTION 5.6. Capitalization. Frama has a minimum of $50,000.00 U.S.,
plus other assets, including licenses.
SECTION 5.7 Litigation. Except as may be disclosed to ▇▇▇▇▇ in writing
on or prior to the date hereof, as of the date hereof there are no claims,
actions, proceedings, or investigations pending or, to the best knowledge of
Frama, threatened against Frama or to the best of Frama knowledge, pending or
threatened against any employee, consultant, director, officer or shareholder,
in his, her or its capacity as such, before any court or governmental or
regulatory authority or body which, if decided adversely, could materially and
adversely affect the financial condition, business, prospects or operations of
Frama. As of the date hereof, neither ▇▇▇▇▇ nor any of its property is
subject to any order, judgment, injunction or decree, which materially and
adversely affects the financial condition, business, prospects or operations
of Frama.
SECTION 5.8 Absence of Certain Changes or Events. Except as disclosed
to ▇▇▇▇▇ in writing, (a) there has not been any change or any development
involving a prospective change, which has affected or may affect materially
and adversely the business, assets or prospects or the financial position or
the results of operations of ▇▇▇▇▇ and its subsidiaries taken as whole; and
(b) Frama has not incurred any indebtedness for money borrowed, or purchased
or sold any material amount of assets, other than in the ordinary course of
business, or entered into any other transaction other than in the ordinary
course of business.
SECTION 5.9 Capitalization as of March 1, 1998. The officers and
directors of Frama individually and jointly personally guarantee to ▇▇▇▇▇
shareholders that as of March 1, 1998 or until sales of Frama/▇▇▇▇▇ reach
$5,000,000 per annum which ever is sooner, there will be a minimum of
$90,000.00 cash U.S. in the ▇▇▇▇▇ accounts and no additional shares of stock
will be issued except as provided for herein.
ARTICLE 6
CONDITIONS
SECTION 6.1 Conditions to Each Party's Obligation to Effect the
Acquisition. The respective obligations of each party to effect the
Acquisition shall be subject to the fulfillment at or prior to the Effective
Date of the following conditions:
(a) this Agreement and the transactions contemplated hereby having
been approved and adopted at or prior to the Effective Date by the requisite
vote of the shareholders of the Company as required by applicable law;
(b) no preliminary or permanent injunction or other order issued by
any federal or state court of competent jurisdiction in the United States or
any foreign jurisdiction preventing the consummation of the Acquisition shall
be in effect;
SECTION 6.2 Conditions to Obligation of Frama to Effect the
Acquisition. The obligation of Frama to effect the Acquisition shall be
subject to the fulfillment at or prior to the Effective Date of the following
conditions any one or more of which (except Section 6.2(h) and (i)) may be
waived by ▇▇▇▇▇:
(a) Frama shall have performed in all material respects their
agreements contained in this Agreement required to be performed on or prior to
the Effective Date including those specified in Section 5.5 herein;
(b) Frama shall have performed in all material respects its
agreements contained in this Agreement required to be performed on or prior to
the Effective Date, including the surrender of 100% of its issued and
outstanding common stock to ▇▇▇▇▇ upon Brian's issuance of an aggregate of
149,415 shares of its common stock to Frama and Frama having capital of
$50,000.00 as of the Effective Date;
(c) the representations and warranties of Frama set forth in this
Agreement shall be true and correct in all material respects on and as of the
Effective Date as if made on and as of such date, except as contemplated or
permitted by this Agreement.
(d) Frama shall have delivered a certificate of its President or its
Chairman of the Board to the effect set forth in paragraphs (a), (b) and (c)
of this Section 6.2;
(e) Frama shall have delivered to ▇▇▇▇▇ copies of resolutions duly
adopted by its Board of Directors approving the execution and delivery of this
Agreement, such resolutions being certified by the Secretary;
(f) No action or preceding before any court or governmental or
regulatory authority or body, United States, federal or state or foreign,
shall have been instituted (and be pending) or threatened by any government or
governmental authority, which seeks to prevent or delay the consummation of
the Acquisition or which challenges any of the terms or provisions of this
Agreement;
(g) No order issued by any United States federal or state or
foreign governmental or regulatory authority or body of by any court of
competent jurisdiction nor any statute, rule, regulation or executive order
promulgated or enacted by any United States federal or state or foreign
governmental authority which prevents the consummation of the Acquisition
shall be in effect;
(h) Frama acknowledges that the Post-Effective Amendment filed with
the S.E.C. after this Agreement is signed must be declared effective by the
S.E.C. and the shareholder reconfirmation offering contained therein shall
have been approved by investors representing a minimum of 80% of the proceeds
of Brian's initial public offering, i.e., $40,000;
(i) The fair market value of Frama is at least $50,000.
(j) Opinion of Counsel to Frama. ▇▇▇▇▇ shall have received an
opinion dated the effective date of this Acquisition
by counsel to Frama, satisfactory to ▇▇▇▇▇, in
substantially the following form:
i) Frama is a corporation duly incorporated, validly
existing and in good standing under the laws of Italy and has the corporate
power to own all of its properties and assets and carry on its business in all
material respects as it is now being conducted, and is qualified to do
business as a foreign corporation in the states in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification.
ii) The execution and delivery by Frama of this Agreement and
the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not conflict with or result in a breach
of any term or provision of Frama's certificate of incorporation or by-laws or
constitute a default or give rise to a right of termination, cancellation or
acceleration under any material mortgage, indenture, deed of trust, license
agreement, or other obligation or violate any court order, writ, injunction or
decree applicable to Frama, or its properties or assets;
iii) This Agreement has been duly and validly
authorized, executed and delivered and constitutes the legal and binding
obligation of Frama, except as limited by bankruptcy and insolvency laws and
by others laws affecting the rights of creditors generally; and
iv) There are no actions, suits or proceedings pending, or to
the best knowledge of such counsel, threatened by or against Frama or
affecting Frama or its properties, at law or in equity, before any court or
any other governmental agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind.
k) Frama shall have appointed
SGI Capital Corp. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ , as its agent to receive
service of process with respect to any action brought against it in the United
States District Court for the Southern District of New York under the
securities laws of the United States of America or any state of the United
States, or any action brought against it in the Supreme Court of the State of
New York in the County of New York under the Securities Laws of the State of
New York.
SECTION 6.3 Conditions to the Obligation of ▇▇▇▇▇ to Effect the
Acquisition. The obligation of the ▇▇▇▇▇ to effect the Acquisition shall be
subject to the fulfillment at or prior to the Effective Date of the following
conditions, any one or more of which may be waived by Frama:
(a) The representations and warranties of ▇▇▇▇▇ set forth in this
Agreement shall be true and correct in all material respects on and as of the
Effective Date as if made on and as of such date, except as contemplated or
permitted by this Agreement;
(b) Except to the extent such consents are not required at the
Effective Date, ▇▇▇▇▇ shall have received the consents or exemptions, or made
the filings, as the case may be, which were referred to in Section 5.4;
(c) ▇▇▇▇▇ shall have delivered a certificate of its President to
the effect set forth in paragraphs (a) and (b) of this Section 4.8;
(d) ▇▇▇▇▇ shall have delivered to Frama copies of resolutions
duly adopted by the Board of Directors of the Company approving the execution
and delivery of this Agreement, such resolutions being certified by the
Secretary of the Company;
(e) No action or proceeding before any court or governmental or
regulatory authority or body, United States federal or state or foreign, shall
have been instituted (and be pending or threatened) by any government or
governmental authority, which seeks to prevent or delay the consummation of
the Acquisition or which challenges any of the terms or provisions of this
Agreement; and
(f) No order issued by any United States federal or state or
foreign governmental or regulatory authority or body, or by any court of
competent jurisdiction nor any statute, rule, regulation, or executive order
promulgated or enacted by any United States, federal, or state or foreign
government or governmental authority, which prevented the consummation of the
Acquisition or materially and adversely affects the business, financial
condition, or operations of ▇▇▇▇▇ shall be in effect.
(g) Shareholder Approval. The shareholders of ▇▇▇▇▇ upon the
Effective Date of this Acquisition will have duly approved the Acquisition and
the issuance of 149,415 shares of ▇▇▇▇▇ Common Stock pursuant to a
reconfirmation offering in which shareholders representing a minimum of
$40,000 of the proceeds from Brian's initial public offering elect to
reconfirm their investment.
(h) Opinion of Counsel to ▇▇▇▇▇. Frama shall have received an
opinion dated the effective date of this Acquisition by ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, counsel to ▇▇▇▇▇,
satisfactory to Frama, in substantially the following form:
i) ▇▇▇▇▇ is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Nevada and has
the corporate power to own all of its properties and assets and carry on its
business in all material respects as it is now being conducted, and is
qualified to do business as a foreign corporation in the states in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification.
ii) The execution and delivery by ▇▇▇▇▇ of this Agreement and
the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not conflict with or result in a breach
of any term or provision of Brian's certificate of incorporation or by-laws or
constitute a default or give rise to a right of termination, cancellation or
acceleration under any material mortgage, indenture, deed of trust, license
agreement, or other obligation or violate any court order, writ, injunction or
decree applicable to ▇▇▇▇▇, or its properties or assets;
iii) The authorized capitalization of ▇▇▇▇▇ consists of
10,000,000 shares of common stock, par value $.0001 per share. As of the date
of this Agreement, there are 132,500 shares of common stock issued and
outstanding and as of the Effective Date there will be 281,915 shares of ▇▇▇▇▇
outstanding;
iv) This Agreement has been duly and validly authorized,
executed and delivered and constitutes the legal and binding obligation of
▇▇▇▇▇, except as limited by bankruptcy and insolvency laws and by others laws
affecting the rights of creditors generally; and
v) There are no actions, suits or proceedings pending, or to
the best knowledge of such counsel, threatened by or against ▇▇▇▇▇ or
affecting ▇▇▇▇▇ or its properties, at law or in equity, before any court or
any other governmental agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind.
(i) Tax Opinion. ▇▇▇▇▇ shall have received an opinion of its tax
counsel, advisor or accountant that the Acquisition to be consummated by the
terms of this Agreement qualifies as a tax-free reorganization as defined
under the Internal Revenue Code of 1986, as amended.
(j) Net Cash. ▇▇▇▇▇ shall have net cash, including the Deposited
Funds, in excess of $40,000 at the Effective Date.
(k) Release of Deposited Funds. On the Effective Date, the
Deposited Funds held in escrow from Brian's initial public offering shall be
released to ▇▇▇▇▇. ▇▇▇▇▇ shall then immediately deposit these funds, plus any
additional funds held by ▇▇▇▇▇, into a trust account with ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ to be disbursed in connection with the tax opinion required herein.
SECTION 6.4 Waiver of Condition; Right to Proceed. Unless stated
otherwise herein, if any of the conditions to the obligations of Frama and
▇▇▇▇▇ specified in Sections 6.2 and 6.3 hereof has not been satisfied
(excluding Sections 6.2(h) and (i) and 6.2(g)), Frama or ▇▇▇▇▇, as the case
may be, in addition to any other rights which may be available to them or it,
shall have the right to waive such conditions and to proceed with the
Acquisition (subject to satisfaction of the other conditions contained herein,
unless also waived).
ARTICLE 7
RULE 419 REQUIREMENTS
SECTION 7.1 Acquisition Criteria. Pursuant to Rule 419 under Regulation
C of the Securities Act of 1933, as amended ("Rule 419"), the fair market
value of Frama must represent at least 80% of the maximum offering proceeds of
Brian's initial public offering, i.e., Frama's fair market value must be at
least $40,000 (80% x $50,000). If the fair market value of Frama is
determined by ▇▇▇▇▇ to be less than $40,000, this Agreement shall terminate
immediately.
SECTION 7.2 Post-Effective Amendment. Once the Acquisition Agreement
has been executed, ▇▇▇▇▇ shall update the registration statement with a
Post-Effective Amendment. The Post-Effective Amendment shall contain updated
information concerning ▇▇▇▇▇ and information about Frama and its business,
including audited financial statements; the results of Brian's initial public
offering. The Post-Effective Amendment shall also include the terms of the
reconfirmation offer mandated by Rule 419. The reconfirmation offer shall
include certain prescribed conditions which must be satisfied before Deposited
Securities can be released from escrow. If the Post-Effective Amendment is
not declared effective by the Securities and Exchange Commission and/or the
reconfirmation offering is not complete within 18 months of the date of
effectiveness of Brian's initial public offering, this Agreement shall
terminate automatically.
SECTION 7.3 Reconfirmation Offering. The reconfirmation offer must
commence after the effective date of the Post-Effective Amendment. Pursuant
to Rule 419, the terms of the reconfirmation offer shall include the following
conditions:
(a) The prospectus contained in the Post-Effective Amendment will be
sent to each investor whose securities are held in the Escrow Account within 5
business days after the effective date of the Post-Effective Amendment;
(b) Each investor will have no fewer than 20 and no more than 45
business days from the effective date of the Post-Effective Amendment to
notify ▇▇▇▇▇ in writing that the investor elects to remain an investor;
(c) If ▇▇▇▇▇ does not receive written notification from any investor
within 45 business days following the effective date of the Post-Effective
Amendment, the pro rata portion of the Deposited Funds (and any related
interest or dividends) held in escrow on such investor's behalf will be
returned to the investor within 5 business days by first class mail or other
equally prompt means;
(d) The Acquisition will be consummated only if a minimum number of
investors representing 80% of the maximum offering proceeds ($40,000) elect to
reconfirm their investment;
(e) If the Merger has not occurred by April 23, 1997 (18 months from
the date of the prospectus), the Deposited Funds held in escrow shall be
returned to all investors on a pro rata basis within 5 business days by first
class mail or other equally prompt means, and this Agreement shall be declared
null and void;
SECTION 7.4 Release of Deposited Securities.
The Deposited Securities may be released to ▇▇▇▇▇ and the investors in
Brian's initial public offering, respectively, after:
(a) The Escrow Agent has received a signed representation from ▇▇▇▇▇
and any other evidence acceptable by the Escrow Agent that:
(i) ▇▇▇▇▇ has executed an agreement for Acquisition of a business
for which the par value of the business represents at least 80% of the maximum
offering proceeds and has filed the required Post-Effective Amendment;
(ii) The Post-Effective Amendment has been declared effective, that
the mandated reconfirmation offer having the conditions prescribed by Rule 419
has been completed and that ▇▇▇▇▇ has satisfied all of the prescribed
conditions of the reconfirmation offer.
(b) The Acquisition of a business with the fair value of at least
80% of the maximum proceeds is consummated.
ARTICLE 8
TERMINATION
SECTION 8.1 Board Action. This Agreement may be terminated at any time
by mutual consent of the Boards of Directors of ▇▇▇▇▇ and FRAMA.
SECTION 8.2 Certain Dates. In the event that ▇▇▇▇▇ shall not have
received certified financial statements from Frama and/or this Agreement is
not executed both parties by , this Agreement may be terminated
by either party upon written notice, whether before or after approval of the
Acquisition thereof by the holders of the requisite number of shares of
▇▇▇▇▇. This Agreement shall terminate automatically if the Acquisition has
not been consummated by April 23, 1997, eighteen (18) months from the
effective date of Brian's initial public offering, which consummation includes
a declaration of effectiveness by the Securities and Exchange Commission of
Brian's Post-Effective Amendment and successful completion of a shareholder
reconfirmation offering, pursuant to which shareholders representing less than
80% of the proceeds from Brian's initial public offering vote to reconfirm
their investments.
SECTION 8.3 Audited Financial Statements. In the event that Frama's
audited financial statements are materially and adversely inconsistent with
the Frama unaudited financial statements contained herein, ▇▇▇▇▇ shall have
the right to unilaterally terminate this Agreement by the Board of Directors
of ▇▇▇▇▇ notifying Frama and its United States counsel, , of such
termination. Such notice shall be sent to Frama and its United States counsel
prior to the Effective Date.
SECTION 8.4 Effect of Termination. In the event of the termination of
this Agreement, this Agreement shall thereafter become void and have no effect
and no party hereto shall have any liability to any other party hereto or its
shareholders or directors or officers in respect thereof, except for the
obligations of the parties hereto in Section 9.2 hereof.
ARTICLE 9
GENERAL AGREEMENTS
SECTION 9.1 Cooperation. Each of the parties hereto shall cooperate
with the other in every reasonable way in carrying out the transactions
contemplated herein, and in delivering all documents and instruments deemed
reasonably necessary or useful by counsel for any party hereto.
SECTION 9.2 Funds. Each party shall incur all its own costs and
expenses in connection with this Agreement and the transactions contemplated
hereby. After the consummation of the Acquisition, all expenses will be
incurred by the Parent Company.
SECTION 9.3 Survival of Representations and Warranties. All
representations and warranties in this Agreement or in any instrument or
certificate delivered pursuant to this Agreement delivered on or prior to the
Effective Date shall survive the consummation of the Acquisition.
SECTION 9.4 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
by messenger, transmitted by telex or telegram or mailed by registered or
certified mail, postage prepaid, as follows:
(a) If to ▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(b) If to Frama, to:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Frama Sri
Milan,Italy 20121
With a copy to:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
SGI Capital Corp
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
The date of any such notice shall be the date
hand delivered or otherwise transmitted or mailed.
SECTION 9.5 Amendment. This Agreement (including the documents and
instruments referred to herein or therein) (a) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof, (b) is not intended to confer upon any other person any rights or
remedies hereunder, and (c) shall not be assigned by operation of law or
otherwise. This Agreement may be amended or modified in whole or in part to
the extent permitted by New York law at any time, by an agreement in writing
executed in the same manner as this Agreement after authorization to do so by
the Board of Directors of Frama and ▇▇▇▇▇.
SECTION 9.6 Waiver. At any time prior to the Effective Date, the
parties hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representation and warranties contained herein or in any
document delivered pursuant hereto, and (c) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a
party hereto to any such extension or waiver shall be valid is set forth in an
instrument in writing signed on behalf of such party.
SECTION 9.7 Brokers. Frama and ▇▇▇▇▇ represent and warrant that no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the Acquisition, except as stated
herein or elsewhere in writing.
SECTION 9.8 Publicity. So long as this Agreement is in effect, the
parties hereto shall not issue or cause the publication of any press release
or other announcement with respect to the Acquisition or this Agreement
without the consent of the other party, which consent shall not be
unreasonably withheld or delayed where such release or announcement is
required by applicable law.
SECTION 9.9 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9.10 Successors and Assigns. This Agreement shall be binding
upon and insure to the benefit of and enforceable by the respective successors
and assigns of the parties hereto.
SECTION 9.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
COUNTERPART SIGNATURE PAGE TO
AGREEMENT AND PLAN OF ACQUISITION
BY AND AMONG
THE ▇▇▇▇▇ ▇. GROUP
AND
FRAMA S.R.L
IN WITNESS WHEREOF the parties have executed this Agreement by their duly
authorized officers as of the ____ day of __________, 1996.
FRAMA S.R.L.
By
President
THE ▇▇▇▇▇ ▇. CORP.
By
President
