AGREEMENT AND PLAN OF MERGER BY AND BETWEEN BRIGHTON INVESTMENT HOLDING CO., INC. AND IMPACT MEDICAL SOLUTIONS, INC.
BY AND
BETWEEN
BRIGHTON
INVESTMENT HOLDING CO., INC.
AND
IMPACT
MEDICAL SOLUTIONS, INC.
AGREEMENT
AND PLAN OF MERGER (this “Agreement”), as of
September 15, 2004 by and between Brighton Investment Holding Co., Inc., a
Delaware corporation (“Brighton”), and
Impact Medical Solutions, Inc., a Nevada corporation (“Impact”).
WHEREAS,
the Boards of Directors of Brighton and Impact deem it advisable for the mutual
benefit of Brighton and Impact and their respective shareholders that Impact be
merged with and into Brighton (the “Merger”), and
have approved this Agreement; and
WHEREAS,
the Boards of Directors of Brighton and Impact have unanimously resolved to
recommend to their respective shareholders acceptance of the Merger and the
other transactions 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 Merger, and the mode of carrying the same into
effect, Impact and Brighton hereby agree as follows:
ARTICLE
1
MERGER
AND ORGANIZATION
SECTION
1.1 The
Merger. As of
the Effective Date (as hereinafter defined), subject to the terms and conditions
hereof and in accordance with the provisions of the Delaware General Corporation
Law and the Nevada Revised Statutes, Impact shall be merged with and into
Brighton. Brighton shall be the surviving entity (the “Surviving
Entity”) and
the separate existence of Impact shall cease as of the Effective Date. Brighton
and Impact are herein sometimes referred to as the “Constituent
Corporations.” It is
the intention of the parties hereto that the Merger qualify as a tax-free
reorganization under Section 368(a)(1)(A) of the Internal Revenue Code of
1986, as amended (the “Code”), and
related sections thereunder.
SECTION
1.2 Effect
of Merger. The
parties agree to the following provisions with respect to the
Merger:
(a) Name
of Surviving Corporation. As of
the Effective Date, the name of the Surviving Entity shall become Impact Medical
Solutions, Inc.
(b) Certificate
of Incorporation. As of
the Effective Date, the Certificate of Incorporation of the Surviving Entity
shall be as set forth on Exhibit A hereto.
(c) By-Laws. As of
the Effective Date, the By-Laws of the Surviving Entity shall be as set forth on
Exhibit B hereto.
(d) Corporate
Organization.
Commencing with the Effective Date, the Surviving Entity shall continue its
corporate existence as a Delaware corporation and (i) it shall thereupon
and thereafter possess all rights, privileges, powers, franchises and property
(real, personal and mixed) of each of the Constituent Corporations;
(ii) all debts due to either of the Constituent Corporations, on whatever
account, all causes in action and all other things belonging to either of the
Constituent Corporations shall be taken and deemed to be transferred to and
shall be vested in the Surviving Entity by virtue of the Merger without further
act or deed; and (iii) all rights of creditors and all liens, if any, upon
any property of any of the Constituent Corporations shall be preserved
unimpaired, limited in lien to the property affected by such liens immediately
prior to the Effective Date, and all debs, liabilities and duties of the
Constituent Corporations shall thenceforth attached to the Surviving
Entity.
(e) Filing
of Certificate of Merger. Subject
to and promptly following the satisfaction or waiver of all the conditions
precedent to the Merger set forth herein, Brighton and Impact shall cause the
Merger to be consummated by filing with the Secretary of State of the States of
Delaware and Nevada a certificate of Merger (the “Articles
of Merger”) in
such form as is required by and executed in accordance with the relevant
provisions of Delaware and Nevada law and as otherwise agreed to by Brighton and
Impact (the date of such filing being the “Effective Date”). At
the Effective Date, in accordance with this Agreement and Delaware and Nevada
law, Impact shall be merged with and into the Brighton, the separate existence
of Impact (except as may be continued by operation of law) shall cease and
Brighton shall continue as the Surviving Entity under the name “Impact Medical
Solutions, Inc.” Impact and Brighton shall use commercially reasonable efforts
to cause the Articles of Merger to be filed with the Secretary of State of the
States of Delaware and Nevada so that the Effective Date occurs on the Closing
Date (as defined below).
(f) Closing. Upon
the terms and subject to the conditions set forth herein, the consummation of
the Merger and the other transactions contemplated by this Agreement (the
“Closing”) shall
be held at the offices of Xxxxxxxxx & Xxxxxxxxx, L.L.P., 00 Xxxx Xxxxxx,
Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, commencing at 10:00 a.m. local time on the
second business day after satisfaction of the last to be satisfied of the
conditions set forth in Article 6 (other than those conditions that, by
their terms, are to be satisfied at the Closing), or at such other time, date or
place as the parties hereto may mutually agree (the “Closing
Date”).
(g) Further
Assurances. If at
any time after the Effective Date, the Surviving Entity shall consider or be
advised that any deeds, bills of sale, assignments or assurances or any other
things are necessary, desirable or proper (a) to vest, perfect or confirm,
of record or otherwise, in the Surviving Entity, 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 Merger, or
(b) otherwise to carry out the purposes of this Agreement, the Constituent
Corporations agree that the Surviving Entity 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 Merger and otherwise to carry out the purposes of this
Agreement.
(h) Officers
and Directors. Upon
consummation of the Merger, the current officers and directors of Brighton shall
resign, and a minimum of three (3) directors (to be designated by Impact on or
prior to the Closing) shall be appointed to the Surviving Entity, which
directors shall thereafter appoint officers of the Surviving Entity
(i) Events
Occurring Immediately Prior to the Closing. It is
currently contemplated that prior to the Merger becoming effective under
Delaware and Nevada law, Impact shall (i) close a private offering under
Regulation D, Rule 506, as promulgated by the Securities and Exchange
Commission (“SEC”) under
the Securities Act of 1933, as amended (the “Securities
Act”),
pursuant to which it will issue additional shares of Impact and warrants to
acquire shares of Impact Common Stock (the “Private
Placement”). All
of the shares of Impact Common Stock issued as part of the Private Placement
shall be included in the shares of Impact that are outstanding at the time of
the Merger and will be converted in the Merger in accordance with
Section 2.1(a) below. All of the warrants to acquire shares of Impact
Common Stock will be included in the convertible securities of Impact that are
outstanding at the time of the Merger and will be assumed by the Surviving
Entity in accordance with Section 2.1(c) below.
ARTICLE
2
THE
MERGER
SECTION
2.1 Conversion
of Shares in the Merger.
On the
Effective Date, and without any action on the part of either of the Constituent
Corporations, each of the following shall occur:
(a) Each
share of Impact Common Stock issued and outstanding immediately prior to the
Effective Date shall be converted into one (1) share of Brighton Common
Stock. All such shares of Impact Common Stock shall no longer be outstanding and
shall automatically be cancelled and shall cease to exist, and each certificate
previously evidencing any such shares shall thereafter represent the right to
receive, upon the surrender of such certificate in accordance with the
provisions of Section 2.4 hereof, certificates evidencing such numbers of
shares of Brighton Common Stock, respectively, into which such shares of Impact
Common Stock were converted. The holders of such certificates previously
evidencing shares of Impact Common Stock outstanding immediately prior to the
Effective Date shall cease to have any rights with respect to such shares of
Impact Common Stock except as otherwise provided herein or by law;
(b) Any
shares of Impact capital stock held in the treasury of Impact immediately prior
to the Effective Date shall automatically be canceled and extinguished without
any conversion thereof and no payment shall be made with respect thereto;
and
(c) Each
outstanding option or warrant to purchase Impact Common Stock, whether or not
then exercisable, shall be converted into an option or warrant to purchase (in
substitution for each share of Impact Common Stock subject to an Impact option
or warrant) one (1) share of Common Stock of the Surviving Entity at a
price equal to the exercise price in effect immediately prior to the Merger. All
other terms and conditions of each Impact option or warrant shall remain the
same.
SECTION
2.2 Further
Transfer of Stock. Prior
to the Merger, each shareholder of Impact may distribute all or any of its
shares of Impact Common Stock as it determines in accordance with any and all
applicable state and federal securities laws, and shall provide counsel to
Brighton with a list of any such transfers at the time of Closing for delivery
to the Transfer Agent (as defined below).
SECTION
2.3 Release
of Shares and Funds from Escrow.
Pursuant to Rule 419 of the Securities Act (“Rule
419”),
certificates representing shares of Brighton Common Stock purchased in
Brighton’s initial public offering (which offering was declared effective by the
SEC on February 13, 2004 (the “IPO
Effective Date”)), as
well as the gross proceeds from such offering, are being held in escrow pending
consummation of an acquisition meeting the requirements of Rule 419 (a
“Qualified
Acquisition”) (the
“Deposited
Securities” and the
“Deposited
Funds,”
respectively). Brighton has eighteen (18) months from the IPO Effective Date in
which to consummate a Qualified Acquisition. If a Qualified Acquisition is not
consummated within that time, the Deposited Securities and Deposited Funds shall
be returned to Brighton and its shareholders, respectively in accordance with
Rule 419, and this Agreement shall terminate. Pursuant to Rule 419,
the Deposited Securities shall be released to the Brighton shareholders and
the Deposited Funds released to Brighton following effectiveness of a
Post-Effective Amendment to the Registration Statement of Brighton currently on
file with, and declared effective by, the SEC , and a reconfirmation offering
pursuant to which Brighton shareholders representing a minimum of 80% of the
offering proceeds of Brighton’s initial public offering ($80,000) reconfirm
their investments.
SECTION
2.4 Surrender
of Certificates.
Brighton has designated Transfer Online, Inc. as Transfer Agent (the
“Transfer
Agent”)
hereunder. Immediately following the Closing, the Transfer Agent shall have
mailed and/or made available to each former Impact shareholder a notice and
letter of transmittal advising such holder of the effectiveness of the Merger
and the procedure for surrendering Impact stock 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 issue shares of common stock of the
Surviving Entity to the former Impact shareholders in accordance with the terms
of this Agreement.
SECTION
2.5 Transfer
Agent. Prior
to the Closing, Brighton shall have made such arrangements to insure that an
adequate number of certificates representing shares of common stock of the
Surviving Entity have been deposited with the Transfer Agent as necessary in
sufficient time to permit prompt distribution against surrender of Impact stock
certificates as provided hereunder.
ARTICLE
3
ADDITIONAL
AGREEMENTS IN CONNECTION WITH THE MERGER
SECTION
3.1 Inconsistent
Activities. In each
case except with respect to issuance of shares by Impact as contemplated by
Section 1.2(i) hereof, unless and until this Agreement has been terminated
in accordance with its terms, neither Impact nor Brighton will (i) solicit
or encourage, directly or indirectly, any inquiries or proposals to acquire any
shares of capital stock of Impact or Brighton 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
Impact or Brighton 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 Impact
or Brighton or any significant portion of the total assets of Impact or Brighton
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 conditions of Closing
set forth herein.
SECTION
3.3 Conduct
of Business by Brighton Pending the Merger.
Brighton covenants and agrees that, prior to the Effective Date, unless Impact
shall otherwise agree in writing and except as contemplated by this
Agreement:
(a) The
business of Brighton shall be conducted only in the ordinary and usual course
and consistent with its past practice, and except in the ordinary course of
business Brighton shall not purchase or sell (or enter into any agreement to so
purchase or sell) any properties or assets or make any other changes in its
operations taken as a whole;
(b) Brighton
shall not (i) amend its Certificate 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, except as designated herein;
(c) Brighton
shall not (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 (except as
required pursuant to Rule 419 as described in Section 2.3) or
(iv) enter into or modify any contact, agreement, commitment or arrangement
with respect to any of the foregoing, except as stated in Section 2.1 of
this Agreement;
(d) Brighton
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) Brighton
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 Brighton, with respect to the performance of personal services that
is not terminable without liability by it on 30 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) Brighton
shall not 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) Brighton
shall not 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) Brighton
shall not 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) Brighton
shall not 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) Impact
shall afford to Brighton 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 Impact and, during such
period, Impact shall furnish promptly to Brighton (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 Impact that may
reasonably be requested. In the event of the termination of this Agreement,
Brighton will, and will cause its representatives to, deliver to Impact all
documents, work papers and other material, and all copies thereof, obtained by
it or on its behalf from Impact 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,
Brighton will deliver to Impact all documents so obtained by it.
(b) Brighton
shall afford to Impact 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 Brighton and, during such
period, Brighton shall furnish promptly to Impact (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 Brighton that
may reasonably be requested. In the event of the termination of this Agreement,
Impact will, and will cause its representatives to, deliver to Brighton all
documents, work papers and other material, and all copies thereof, obtained by
it or on its behalf from Brighton 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,
Impact will deliver to Brighton all documents so obtained by it.
SECTION
3.5 Notice
of Actions and Proceedings. Impact
shall promptly notify Brighton, and Brighton shall promptly notify Impact of any
claims, actions, proceedings or investigations commenced or, to the best of its
knowledge, threatened, involving or affecting Impact or Brighton 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 Impact or Brighton 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 Merger or the transactions
contemplated hereby.
SECTION
3.6 Notification
of Other Certain Matters. Impact
shall give prompt notice to Brighton, and Brighton shall give prompt notice to
Impact 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 Impact or
Brighton 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 Impact or Brighton
taken as a whole to which Impact or Brighton 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 Impact or Brighton, 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 Impact
Stockholder Consent. Impact
shall, at a meeting of its stockholders duly called by the Board of Directors of
Impact to be held as soon as practicable following execution of this Agreement,
or by written consent by the holders of a majority of its capital stock, present
the following proposal for the authorization and approval of the stockholders of
Impact and recommend its adoption by the stockholders:
(a) ratification
of this Agreement and authorization of the consummation of the Merger and the
other transactions contemplated herein.
SECTION
3.8 Brighton
Stockholder Consent.
Brighton shall, as soon as practicable following execution of this Agreement,
obtain written consent of the holders of two-thirds of its capital stock to
ratify this Agreement and authorize the consummation of the Merger and the other
transactions contemplated herein.
SECTION
3.9 Surviving
Entity Covenants. The
Surviving Corporation shall use commercially reasonable efforts to cause the
Surviving Entity’s common stock to trade on the OTC-BB within three months of
the date of effectiveness of the Merger. The Surviving Entity shall use
commercially reasonable efforts to file with the SEC, within 18 months of the
Closing Date, a registration statement to register for resale the shares of
common stock deemed to be “blank check” shares (i.e. shares that will never be
eligible for sale under Rule 144 of the Securities Act) held by the former
shareholders of Brighton as of the Closing Date.
ARTICLE
4
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS OF BRIGHTON
Brighton
represents and warrants to, and agrees with Impact as follows:
SECTION
4.1 Organization
and Good Standing.
Brighton is a duly incorporated and validly existing corporation in good
standing under the laws of the state of Delaware, 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 in each jurisdiction where such qualification is
required.
SECTION
4.2 Authorization;
Binding Agreement.
Brighton 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 Brighton, and
subject to any requisite approval of the Merger by the shareholders of Brighton,
constitutes a valid and binding agreement of Brighton, enforceable against
Brighton in accordance with its terms.
SECTION
4.3 Capitalization. The
authorized capital stock of Brighton consists of 500,000 shares of common stock,
par value $0.0001 per share. Between May 28, 2003 and June 5, 2003,
Brighton issued 300,000 shares of common stock to three persons. Between
July 1, 2004 and July 31, 2004, Brighton issued an additional 200,000
shares in its initial public offering to 15 persons for $0.50 per share. These
200,000 shares, as well as the offering proceeds of $100,000, are currently held
in escrow as described in Section 2.3. As of the date hereof, 500,000 shares of
Brighton common stock are issued and outstanding (including the shares held in
escrow). All of the outstanding shares of capital stock of Brighton have been
duly authorized and validly issued and are fully paid and nonassessable.
Brighton is not aware of any voting trusts, voting agreements or similar
understandings applicable to the shares. Brighton does not have any outstanding
options, warrants, calls, rights, commitments, convertible securities and other
securities pursuant to which the holder, directly or indirectly, has the right
to acquire (with or without additional consideration) capital stock or equity
securities (“Stock
Equivalents”) of
Brighton, or any other agreement or commitment which restricts the transfer of
or otherwise relates to the shares of its common stock, except for 200,000
shares held in escrow as described in Section 2.3.
SECTION
4.4 Litigation. As of
the date hereof there are no claims, actions, proceedings, or investigations
pending or, to the best knowledge of Brighton, threatened against Brighton or to
the best of Brighton’s knowledge, pending or threatened against any Brighton
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 Brighton. As of the
date hereof, neither Brighton 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 Brighton.
SECTION
4.5 Financial
Statements.
Brighton has provided Impact with true and complete copies of Brighton’s audited
financial statement as of and for the periods ended December 31, 2002 and 2003,
and unaudited interim financial statements as of and for the six-month period
ended June 30, 2004. These financial statements of Brighton 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 Brighton 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.
SECTION
4.6 Absence
of Certain Changes or Events.
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
Brighton. Brighton 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. The
execution, delivery and performance by Brighton of this Agreement, and the
performance by Brighton of its obligations hereunder, will not
(a) subject
to the appropriate approval by Brighton’s shareholders, conflict with or result
in a breach of any of the provisions of its Certificate 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 Brighton or
the transactions contemplated hereby;
(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 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 Brighton 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 Brighton.
SECTION
4.8 Governmental
and Other Consents, etc. Subject
to the requisite shareholder approval, 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 Brighton is required in connection with the execution or delivery by
Brighton of this Agreement or the consummation by Brighton of the transactions
contemplated hereby other than (i) filings in the State of Delaware in
accordance with state law thereof, (ii) filings under state securities
“Blue Sky” or anti-takeover laws and (iii) under Regulation D of the
Securities Act.
SECTION
4.9 No
Benefits Plans.
Brighton does not have any employment agreement with any employee of Brighton 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.
Brighton is not a party to any collective bargaining agreement or any other
agreement with employees of Brighton or any of its subsidiaries.
SECTION
4.11 ERISA.
Brighton 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.
Brighton is not a party to: (a) 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 Brighton or any affiliate or associate of such
officer, director or person; or (b) any employment, severance, change of control
or other compensatory plan or agreement with any officer or employee.
SECTION
4.13 Authorization
of Shares. As of
the Effective Date, the shares of Brighton’s Common Stock to be issued and
delivered to the Impact stockholders hereunder and in connection herewith will,
when so issued and delivered, constitute duly authorized, validly and legally
issued, fully-paid, and non assessable shares of capital stock, free of all
liens and encumbrances.
SECTION
4.14 No
Material Assets or Liabilities. At the
Closing, Brighton shall have no material assets nor any liabilities of any kind,
except as set forth on the financial statements described in
Section 4.5.
SECTION
4.15 Taxes. Brighton
has filed all federal, state, county and local income, excise, property and
other tax, governmental and/or other returns, forms, filings, or reports, which
are due or required to be filed by it prior to the date hereof and have paid or
made adequate provision in its financial statements for the payment of all
taxes, fees, or assessments which have or may become due pursuant to such
returns, filings or reports or pursuant to any assessments received. Brighton is
not delinquent or obligated for any tax, penalty, interest, delinquency or
charge and there are no tax liens or encumbrances applicable to either
corporation.
SECTION
4.16 Securities
Law Matters.
Brighton has complied with all of the provisions relating to the issuance of
shares, and for the registration thereof, under the Securities Act, other
applicable securities laws, and all applicable blue sky laws in connection with
any and all of its stock issuance. There are no outstanding, pending or
threatened stop orders or other actions or investigations relating thereto
involving federal or state securities laws. All issued and outstanding shares of
Brighton’s equity and other securities were offered and sold in compliance with
federal and state securities laws.
SECTION
4.17 Accuracy
of Information. All
information regarding Brighton which has been provided to Impact by Brighton or
set forth in any document or other communication, disseminated to any former,
existing or potential stockholders of Brighton or to the public or filed with
the NASD or the SEC or any state securities regulators or authorities is true,
complete, accurate in all material respects, not misleading, and was and is in
full compliance with all securities laws and regulations.
SECTION
4.18 Compliance
with Laws.
Brighton is and has been in compliance with, and Brighton has conducted any
business previously owned or operated by it in compliance with, all applicable
laws, orders, rules and regulations of all governmental bodies and agencies,
including applicable securities laws and regulations (including, by way of
example and not limitation the Xxxxxxxx-Xxxxx Act of 2002) and environmental
laws and regulations, except where such noncompliance has and will have, in the
aggregate, no material adverse effect. Brighton has not received notice of any
noncompliance with the foregoing, nor is it aware of any claims or threatened
claims in connection therewith. Brighton has never conducted any operations or
engaged in any business transactions whatsoever other than as set forth in the
reports Brighton has previously filed with the SEC.
SECTION
4.19 SEC
Documents.
Brighton has filed all required documents, reports and schedules with the SEC
and any applicable state or regional securities regulators or authorities
(collectively, the “Brighton
SEC Documents”). As of
their respective dates, the Brighton SEC Documents complied in all material
respects with the requirements of the Securities Act, the rules and regulations
and state and regional securities laws and regulations, as the case may be, and,
at the respective times they were filed, none of the Brighton SEC Documents
contained any untrue statement of a material fact or omitted to state a 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 (including, in each case, any notes thereto) of Brighton
included in the Brighton SEC Documents complied, to the best knowledge of
Brighton, as to form and substance in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect
thereto, were prepared in accordance with generally accepted accounting
principles (except as may be indicated therein or in the notes thereto) and
fairly presented in all material respects the financial position of Brighton as
of the respective dates thereof and the results of its operations and its cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments and to any other adjustments described
therein).
SECTION
4.20 No
Employees.
Brighton currently has no employees, consultants or independent contractors.
SECTION
4.21 No
Material Contracts. Brighton
has no material contracts, commitments, arrangements, or understandings relating
to its business, operations, financial condition, prospects or otherwise. For
purposes of this Section 4.21, “material” means payment or performance of a
contract, commitment, arrangement or understanding which is expected to involve
payments in excess of $2,000.
SECTION
4.22 No
Commitments.
Brighton has no outstanding lease commitments that cannot be terminated without
penalty upon 30-days notice, or any purchase commitments.
SECTION
4.23 No
Subsidiaries.
Brighton does not own or have any direct or indirect stock or other equity or
ownership interest (whether controlling or not), or any contract to acquire any
such interest, in any corporation, association, partnership, joint venture or
other entity.
ARTICLE
5
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS OF IMPACT
Impact
represents and warrants to Brighton as follows:
SECTION
5.1 Organization
and Good Standing. Impact
is a duly incorporated and validly existing corporation in good standing under
the laws of Nevada, with all requisite power and authority (corporate and other)
to own its properties and conduct its businesses.
SECTION
5.2 Authorization;
Binding Agreement. Impact
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 Impact and constitutes a valid and binding agreement of Impact in
accordance with its terms.
SECTION
5.3 Absence
of Breach. The
execution, delivery and performance by Impact of this Agreement, and the
performance by Impact of its obligations hereunder, do not (i) conflict
with or result in a breach of any of the provisions of its Certificate 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 Impact, or (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 Impact is a party or by which Impact properties
may be affected or bound, which, singly or in the aggregate, would have a
material adverse effect on Impact .
SECTION
5.4 Governmental
and Other Consents, etc. Subject
to the requisite Board of Directors and shareholder 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 on the part of Impact is required in connection with the execution
or delivery by Impact of this Agreement or the consummation by Impact of the
transaction contemplated hereby other than (i) filings in the state of
Nevada in accordance with the laws of that state, or (ii) filings under
state securities “Blue Sky” or anti-takeover laws.
SECTION
5.5 Financial
Statements. Impact
has provided to Brighton true and correct copies of its balance sheet as of June
30, 2004 (the “Current
Balance Sheet”) and it
income statement for the nine months then ended, and its balance sheet as of
September 30, 2003 and its income statement for the year then ended.
SECTION
5.6 Capitalization. The
authorized capital stock of Impact consists of 50,000,000 shares of Common
Stock, par value $.0005 per share, of which 14,262,000 shares were outstanding
on the date of this Agreement, and 10,000,000 shares of Preferred Stock, par
value $.0005 per share, of which no shares were outstanding.
SECTION
5.7 Litigation. As of
the date of this Agreement: (a) there are no claims, actions, proceedings,
or investigations pending or, to the best knowledge of Impact, threatened
against Impact or to the best of Impact’s 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 Impact; and
(b) neither Impact 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 Impact
SECTION
5.8 Absence
of Certain Changes or Events. Since
the date of the Current Balance Sheet: (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 Impact; and (b) Impact 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.
ARTICLE 5A
COVENANTS
SECTION 5A.1.
Financial
Statements. As
promptly as practicable following the date of this Agreement, Impact shall
retain independent public accountants to audit is financial statements for its
past two years fiscal years. Upon completion of the audit, Impact shall provide
Brighton with copies of its audited financial statements and any necessary
interim financial statement for inclusion in the Post Effective Amendment. All
of these financial statements shall be prepared in accordance with generally
accepted accounting principles (as in effect from time to time) applied on a
consistent basis and shall present fairly the financial position, results of
operations and changes in financial position of Impact as of the dates thereof
and for the periods then ended.
SECTION 5A.2.
Rule 419
Compliance.
Brighton covenants to take all steps necessary to comply with the provisions of
Rule 419 of the Securities Act. Without limiting the generality of the
foregoing, Brighton covenants to file the Post-Effective Amendment as soon as
reasonably practicable. Prior to filing the Post-Effective Amendment, Brighton
shall provide Impact with a draft for Impact’s review and comment. Brighton
shall make such changes to the Post-Effective Amendment prior to its filing as
Impact shall reasonably request. Brighton shall keep Impact informed of the
status of the Post-Effective Amendment once filed with the SEC, and shall give
Impact the opportunity to participate in the process of responding to SEC
comments to the Post-Effective Amendment, if any.
SECTION 5A.3.
Stockholder
Approval. Each
party covenants to use commercially reasonable efforts to obtain the required
approvals of its respective stockholders as soon as is reasonably practical
following the date hereof. In this regard, each party covenants to provide its
stockholders with such information as may be required under law.
SECTION 5A.4.
Securities
Law Compliance.
Brighton covenants to comply with all requirements of state and federal
securities laws in connection with the issuance of shares to the Impact
stockholders as contemplated hereby. In this regard, Brighton agrees to deliver
to each Impact stockholder a disclosure statement containing all of the
information required by the applicable provisions of Regulation D under the
Securities Act. Brighton shall cooperate with Impact regarding the preparation
thereof and shall use its commercially reasonably efforts to prepare and
circulate the disclosure statement as soon as reasonably
practicable.
ARTICLE
6
CONDITIONS
SECTION
6.1 Conditions
to Each Party’s Obligation to Effect the Merger. The
respective obligations of each party to effect the Merger 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 each company as required by applicable law; and
(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 Merger shall be in
effect.
SECTION
6.2 Conditions
to Obligation of Impact to Effect the Merger. The
obligation of Impact to effect the Merger shall be subject to the fulfillment at
or prior to the Effective Date of the following additional conditions, any one
or more of which may be waived by Impact:
(a) Brighton
shall have performed in all material respects its agreements contained in this
Agreement required to be performed on or prior to the Effective
Date;
(b) the
representations and warranties of Brighton 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;
(c) no
shareholders of Brighton have exercised their statutory rights of appraisal with
respect to their shares;
(d) Brighton
shall have delivered a certificate of its President
Chief
Executive Officer and Chief
Financial Officer to the effect set forth in paragraphs (a), (b) and (c) of
this Section 6.2 and certifying that the only outstanding capital stock of
Brighton is 500,000 shares of Common Stock and that there are no Stock
Equivalents of Brighton outstanding;
(e) Brighton
shall have delivered to Impact copies of resolutions duly
adopted by its Board of Directors approving the Merger, such resolutions being
certified by the Secretary or other officer of Brighton;
(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 Merger 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 Merger shall be in effect;
(h) the
Post-Effective Amendment has been declared effective by the SEC; Brighton
shareholders representing a minimum of 80% of the offering proceeds of
Brighton’s initial public offering have reconfirmed their investments in
accordance with Rule 419;
(i) Impact
shall have received an opinion dated the effective date of this Merger by
counsel to Brighton, reasonably satisfactory to Impact, in substantially the
following form:
i) Brighton
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has the corporate power and authority to
own all of its properties and assets and carry on its business in all material
respects as it is now being conducted.
ii) The
execution and delivery by Brighton 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
Brighton’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
Brighton, or its properties or assets;
iii) The
authorized capitalization of Brighton consists of 30,000,000 shares of common
stock, par value $0.0001 per share, of which, as of the date of the Merger,
500,000 shares of common stock are issued and outstanding, and to such counsel’s
knowledge, there are no Stock Equivalents of Brighton outstanding.
iv) This
Agreement has been duly and validly authorized, executed and delivered and
constitutes the legal and binding obligation of Brighton, enforceable against
Brighton in accordance with its terms except as limited by bankruptcy and
insolvency laws and by others laws affecting the rights of creditors generally;
and
v) To such
counsel’s knowledge, there are no actions, suits or proceedings pending or
threatened against Brighton or affecting Brighton 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;
(j) Impact
shall have received all necessary and required consents and exemptions from
required parties;
(k) The
Merger shall be permitted by applicable state law and otherwise and Brighton
shall have sufficient shares of its capital stock authorized to complete the
Merger and the transactions contemplated hereby;
(l) At
Closing, all of the directors and officers of Brighton shall have resigned in
writing from their positions as directors and officers of Brighton effective
upon the election and appointment of the Impact nominees, and the directors of
Brighton shall take such action as may be necessary or desirable regarding such
election and appointment of Impact nominees;
(m) At the
Closing, all instruments and documents delivered by Brighton pursuant to the
provisions hereof shall be reasonably satisfactory to legal counsel for Impact;
and
(n) The
shares of restricted Brighton capital stock to be issued to Impact stockholders
at Closing will be validly issued, nonassessable and fully paid under Delaware
corporation law and will be issued in a nonpublic offering in compliance with
all federal, state and applicable securities laws.
SECTION
6.3 Conditions
to the Obligation of Brighton to Effect the Merger. The
obligation of Brighton to effect the Merger shall be subject to the fulfillment
at or prior to the Effective Date of the following additional conditions, any
one or more of which may be waived by Brighton:
(a) Impact
shall have performed in all material respects its agreements contained in this
Agreement required to be performed on or prior to the Effective
Date;
(b) The
representations and warranties of Impact 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;
(c) Brighton
shall have received all necessary and required consents or exemptions from
required parties;
(d) Impact
shall have delivered a certificate of its President to the effect set forth in
paragraph (a) of this Section 6.3;
(e) Impact
shall have delivered to Brighton copies of resolutions duly adopted by the Board
of Directors of Impact approving the execution and delivery of this Agreement,
such resolutions being certified by the Secretary of Impact;
(f) 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 Merger 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, 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 Merger or materially and
adversely affects the business, financial condition, or operations of Brighton
shall be in effect; and
(h) Opinion
of Counsel to Impact.
Brighton shall have received an opinion dated the effective date of this Merger
by counsel to Impact, reasonably satisfactory to Brighton, in substantially the
following form:
i) Impact is
a corporation duly incorporated, validly existing and in good standing under the
laws 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;
ii) The
execution and delivery by Impact 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
Impact’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 Impact 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 Impact, except as limited by
bankruptcy and insolvency laws and by others laws affecting the rights of
creditors generally; and
iv) To such
counsel’s knowledge there are no actions, suits or proceedings pending or
threatened by or against Impact or affecting Impact 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.
SECTION
6.4 Waiver
of Condition; Right to Proceed. Unless
stated otherwise herein, if any of the conditions to the obligations of Impact
and Brighton specified in Sections 6.2 and 6.3 hereof has not been
satisfied, Impact or Brighton, 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 Merger (subject to satisfaction of the other
conditions contained herein, unless also waived).
ARTICLE
7
TERMINATION
SECTION
7.1 Termination
Events. This
Agreement may be terminated at any time prior to the Closing, in
writing:
(a) by
Impact, if:
i) a
material breach of any provision of this Agreement has been committed by
Brighton and such breach has not been cured within ten days after the breach and
has not been expressly waived in writing;
ii) any of
the conditions in Article 6.2 have not been satisfied as of the Closing or
if satisfaction of such a condition is or becomes impossible (other than through
the failure of Impact to comply with its obligations under this Agreement) and
Impact has not expressly waived such condition in writing on or before the
Closing; or
iii) the
Closing has not occurred on or before December 31, 2004.
(b) by
Brighton, if:
i) a
material breach of any provision of this Agreement has been committed by Impact
and such breach has not been cured within ten days after the breach and has not
been expressly waived in writing;
ii) any of
the conditions in Article 6.3 have not been satisfied as of the Closing or if
satisfaction of such a condition is or becomes impossible (other than through
the failure of Brighton to comply with its obligations under this Agreement) and
Brighton has not expressly waived such condition in writing on or before the
Closing;
iii) Impact
has not delivered to Brighton certified financial statements by October 31,
2004; or
iv) the
Closing has not occurred on or before December 31, 2004.
(c) by mutual
consent of Brighton and Impact.
SECTION
7.2 Effect
of Termination. Each
party’s right of termination under Section 7.1 hereof
is in addition to any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination will not be an election of
remedies. If this Agreement is terminated pursuant to Section 7.1 hereof,
all further obligations of the parties under this Agreement will terminate;
provided,
however, that if this Agreement is terminated by a party because of the material
breach of this Agreement by the other party or because one or more of the
conditions to the terminating party’s obligations under this Agreement is not
satisfied as a result of the other party’s failure to comply with its
obligations under this Agreement, the terminating party’s right to pursue all
legal remedies will survive such termination.
ARTICLE
8
GENERAL
AGREEMENTS
SECTION
8.1 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
8.2 Funds. Each
party shall incur all its own costs and expenses in connection with this
Agreement and the transactions contemplated hereby.
SECTION
8.3 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 Merger.
SECTION
8.4 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 Brighton, to: |
Xxxxxxx
Xxxxxx
000
Xxx Xxxxxx
Xx.
Xxxxxxxx
Xxxxxx,
Xxxxxx X0X0X0 |
|
With
a copy to: |
Xxxxxxxxx
Xxxxxxxxx LLP
00
Xxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx Xxxxxxxxx, Esq. |
|
(b) If
to Impact, to: |
Xx.
Xxxxx X. Xxxxxxxx
Chief
Executive Officer
00000
Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000 |
|
With
a copy to |
Xxxx
& Xxxxx PC
0000
Xxxxxxx Xxxx Xxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxx X. Xxxxx, Esq. |
The date
of any such notice shall be the date hand delivered or otherwise transmitted or
mailed.
SECTION
8.5 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 Impact and
Brighton.
SECTION
8.6 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
8.7 Brokers. Impact
and Brighton 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 Merger.
SECTION
8.8 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
Merger 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
8.9 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
8.10 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
8.11 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
BY AND
AMONG
BRIGHTON
INVESTMENT HOLDING CO., INC.
AND
IMPACT
MEDICAL SOLUTIONS, INC.
IN
WITNESS WHEREOF the parties have executed this Agreement by their duly
authorized officers as of the date set forth above.
|
BRIGHTON
INVESTMENT HOLDING CO., INC.
|
| By:
|
| Xxxxxxx Xxxxxx, President |
| IMPACT MEDICAL SOLUTIONS, INC. |
|
By:
|
|
Xxxxx X. Xxxxxxxx, CEO |
