this first 8K shows the officer link from TCG to ACCELENERGY AND AAPU
Jack Bows and David Liu to AAPU
and Judy King and Mr.SMITH to AE
and MR. SMITH appears in AAPU PRs
America Asia Corp · 8-K · For 8/18/04
Filed On 9/9/04 1:40pm ET · SEC File 0-20598 · Accession Number 1214782-4-366
in this filing.an "object" Search. Show docs searched and the 1st "hit".every "hit".
Help... Wildcards: ? (any letter), * (many). Logic: for Docs: & (and), | (or); for Text: | (anywhere), "(&)" (near).
As Of Filer Filing As/For/On Docs:Pgs Issuer Agent
9/09/04 America Asia Corp 8-K{1,2,3,5 8/18/04 1:24 1214782
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Current Report · Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 24 131K
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Document Table of Contents
Page (sequential) | (alphabetic) Top
Alternative Formats (RTF, XML, et al.)
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Amendments to the Registrant's Code of Ethics, or Waiver of a Provision of the Code of Ethics
Bankruptcy or Receivership
Changes in Control of Registrant
Changes in Registrant's Certifying Accountants
Completion of Acquisition or Disposition of Assets
Costs Associated with Exit or Disposal Activities
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Entry into a Material Definitive Agreement
Financial Statements, Pro Forma Financial Information and Exhibits
Material Impairments
Material Modification to Rights of Security Holders
Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
Other Events
Regulation FD Disclosure
Results of Operations and Financial Condition
Temporary Suspension of Trading Under Registrant's Employee Benefit Plans
Termination of a Material Definitive Agreement
Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
Unregistered Sales of Equity Securities
1 1st Page
" Item 1.01. Entry into a Material Definitive Agreement
2 Item 1.02. Termination of a Material Definitive Agreement
" Item 1.03. Bankruptcy or Receivership
" Item 2.01. Completion of Acquisition or Disposition of Assets
8 Item 2.02. Results of Operations and Financial Condition
" Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
" Item 2.04. Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
" Item 2.05. Costs Associated with Exit or Disposal Activities
" Item 2.06. Material Impairments
" Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
" Item 3.02. Unregistered Sales of Equity Securities
9 Item 3.03. Material Modification to Rights of Security Holders
" Item 4.01. Changes in Registrant's Certifying Accountants
" Item 4.02. Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review
" Item 5.01. Changes in Control of Registrant
" Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
" Item 5.04. Temporary Suspension of Trading Under Registrant's Employee Benefit Plans
" Item 5.05. Amendments to the Registrant's Code of Ethics, or Waiver of a Provision of the Code of Ethics
" Item 7.01. Regulation FD Disclosure
10 Item 8.01. Other Events
" Item 9.01. Financial Statements, Pro Forma Financial Information and Exhibits
8-K 1st Page of 24 TOC Top Previous Next Bottom Just 1st
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 18, 2004
VITALLABS, INC.
(Exact name of registrant as specified in its charter)
Nevada 000-20598 75-2293489
(State or other (Commission (IRS Employer
jurisdiction File Number) Identification No.)
of incorporation)
Suite 402, 105 Elm Street, Old Saybrook, Connecticut 06475
(Address of principal executive offices Zip Code)
Registrant's telephone number, including area code: 860-767-6580
12547 66th Street North, Largo Florida 33773
(Former name or former address, if changed since last report)
[ ] Written communications pursuant to Rule 425 under the Securities Act
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act
Section 1 - Registrant's Business and Operations
Item 1.01. Entry into a Material Definitive Agreement.
On August 18, 2004, the registrant entered into a definitive Stock Exchange
Agreement with The Chirico Group, Inc. and Anthony Chirico. Pursuant to this
agreement, Mr. Chirico has gained control of the registrant. Mr. Chirico has
been elected to the Board of Directors, has a right to designate all other
directors and has been appointed president of the registrant. Mr. Chirico held
97.23 percent of The Chirico Group prior to the transaction. The registrant
exchanged 1.8 million shares of its newly designated Class C Voting, Convertible
Preferred Stock for all of the issued and outstanding equity securities of The
Chirico Group held by Mr. Chirico and all other stockholders of The Chirico
Group. Each share of the preferred stock has the right to cast fifty-six votes
on any matter submitted to the stockholders, or fifty percent of all votes
assuming all 100 million shares of authorized common stock were to be issued and
vote on each such matter along with the preferred stock. Mr. Chirico will vote
all shares of the preferred stock pursuant to a proxy from the other beneficial
owners of the preferred stock. The preferred stock will automatically convert
into eighteen million shares of common stock following a 50:1 share
consolidation of common stock leaving two million shares of common stock,
assuming all 100 million shares of authorized common stock is issued and
outstanding, prior to the conversion. The share consolidation will be submitted
to stockholders for approval pursuant to a proxy or consent solicitation under
Regulation 14A of the Securities Exchange Act of 1934, as amended. This
solicitation cannot occur until the registrant has filed all reports which are
required to be filed under the Act. Following share consolidation and the
conversion of the preferred stock, the registrant will have twenty million
shares of common stock issued and outstanding and the former stockholders of The
Chirico Group and certain former creditors of registrant will own ninety percent
of registrant's then issued and outstanding twenty million shares of common
stock. Mr. Chirico will own approximately 17,501,659 of those shares, or
eighty-eight percent. In the event the audited gross revenues and net profits
of The Chirico Group for the fiscal year ended December 31, 2003 do not equal or
exceed $8 million and $1.8 million, respectively, the share-consolidation ratio
may be decreased by a factor subject to good faith negotiations, with the result
that the number of shares remaining in the hands of existing common stockholders
would increase above two million shares while the shares issued in the
conversion of the preferred stock would remain at eighteen million.
8-K 2nd Page of 24 TOC 1st Previous Next Bottom Just 2nd
Prior to the acquisition, the registrant and its directors, officers and
affiliates had no relationship with The Chirico Group or Mr. Chirico. Mr.
Chirico assumed control of the registrant from Frank Pinizzotto, the holder of a
majority of the registrant's issued and outstanding common stock and three other
directors, Frank Ed Donofrio, Kurt Schauer and Kevin Skinner, who were elected
as directors immediately prior to the transaction. Messrs. Pinizzotto,
Donofrio, Schauer and Skinner resigned as directors of the registrant upon
closing of the acquisition of The Chirico Group.
Two stockholders of the registrant have placed an aggregate of ten million
shares of the registrant into an escrow for one year to cover any contingent,
unknown or undisclosed liabilities of the registrant. Any such shares not used
or designated for use at the end of one year (or if reserved for use, then when
no longer required) will be returned to the stockholders. The stockholders are
Frank Pinizzotto and Duane Gawron.
Item 1.02. Termination of a Material Definitive Agreement
NOT APPLICALBE
Item 1.03. Bankruptcy or Receivership.
NOT APPLICABLE
Section 2 - Financial Information
Item 2.01 Completion of Acquisition or Disposition of Assets
In the transaction described in Item 1.01, above, the registrant acquired all of
the issued and outstanding equity securities of The Chirico Group which it will
operate as a wholly owned subsidiary. The business of The Chirico Group will
constitute the complete business of the registrant, on a consolidated basis.
The following information is provided with respect to The Chirico Group. The
number of shares issued by the registrant for the acquisition of The Chirico
Group was determined in arms' length negotiations, and was based solely on a
determination to leave approximately ten percent of the registrant's issued and
outstanding common shares in the hands of the public and non-affiliates in order
to sustain a public trading market and ninety percent of the issued and
outstanding shares in the hands of the former stockholders of The Chirico Group
and approximately eight other persons who were creditors of the registrant. The
registrant intends to continue to conduct The Chirico Group's business and the
use of its assets in the same manner they were conducted and used prior to the
transaction. The following information is about the registrant following the
change in control described in Item 1.01, above, and about The Chirico Group's
business.
8-K 3rd Page of 24 TOC 1st Previous Next Bottom Just 3rd
Description of business
-----------------------
The Chirico Group, Inc. was incorporated in Nevada on June 29, 2004. It is the
successor to the business of "Nanuet Co.", a California corporation founded in
the mid-1980s by Mr. Chirico. Anthony Chirico is also the founder of The
Chirico Group. The Chirico Group does not have any subsidiaries. Certain
information about the history of The Chirico Group incorporates information
about Nanuet Co. The Chirico Group was founded originally to supply American
entertainment products, like television programs and movies, to mainland Chinese
markets. The business expanded over the years to include merchandising linked to
entertainment in what is believed to be the first western style advertising
campaign of its kind in China. The business further expanded into manufacturing
and quality control, including the use of technology, equipment, distribution,
marketing, and the Internet. As The Chirico Group's network expanded and more
companies attempted to tap the Asia-Pacific markets, The Chirico Group geared
itself to meet the needs of Western companies seeking access to those markets,
principally, mainland China.
The Chirico Group provides consulting services and is engaged product
distribution and in manufacturing.
The Chirico Group provides market consulting services, business plan
implementation, promotional campaigns and project management for U.S. firms who
want to do or who are doing business with or in the Peoples Republic of China,
Hong Kong, Taiwan and Singapore. The Chirico Group has experience and contacts
in these countries. It has represented companies as diverse as CBS, Star
Building Systems and Ford Motor Company. The Chirico Group blends western and
international elements with an understanding of Chinese markets that allows it
to effectively assist businesses in achieving benefits of engaging in business
with and in those countries. A complete list of services provide by The Chirico
Group includes marketing, import and export, distribution and sales,
entertainment, project and construction management, real estate, promotional
campaigns and commodities trading. The Chirico Group also acts as a company
agent and provides representative offices, market analysis, business plan
development and implementation, product distribution and sourcing, e-commerce
product packaging, marketing and sales campaigns, consumer and industrial
product distribution, corporate identity and image development, financing,
patent and trademark registration, contract negotiations, manufacturing quality
control and documentation. Information about the revenues generated from the
sale of consulting services during each of the last three fiscal years ended
December 31, 2003, will be provided by amendment of this report upon completion
of an audit of The Chirico Group's financial statements for those fiscal years.
Sales of these services are not affected by seasonal changes. The Chirico Group
is not dependent for the sale of its services on a single or a few customers.
The Chirico Group does not have a backlog of orders for consulting services. The
Chirico Group competes against a number of other firms who offer a range of the
services offered by The Chirico Group.
8-K 4th Page of 24 TOC 1st Previous Next Bottom Just 4th
The Chirico Group has undertaken the importation from the U.S. and distribution
in the Peoples Republic of China of a number of products.
The Chirico Group, in a joint venture under an agreement dated February 29, 1999
with Maoming International Economic and Technology Company, markets crude oil
extracted from oil shale. The Chirico Group plans to manufacture and sell an
asphalt binder to be used principally for road construction, using the crude oil
extracted from oil shale as a principal component. The market for the crude oil
is and the initial market for the asphalt binder is expected to be mainland
China. But, the registrant expects eventually to export the asphalt binder from
China to other Asian countries and to the U.S. The Chirico Group's interest in
the joint venture is seventy percent. The Chirico Group will need to finance
and construct a plant for manufacture of the asphalt binder. The Chirico Group
has a patent application pending in the U.S. covering the asphalt binder. The
Chirico Group believes the qualities of asphalt binder produced using crude oil
from oil shale are superior to asphalt binders manufactured with crude oil from
other sources. It also believes the use of the crude oil extracted from oil
shale will generate greater revenues per barrel compared to selling the crude
oil directly. Information about the revenues generated from the sale of crude
oil by the joint venture during each of the last three fiscal years ended
December 31, 2003, will be provided by amendment of this report upon completion
of an audit of The Chirico Group's financial statements for those fiscal years.
Maoming supplies the oil shale and the plant for extraction of the crude oil.
And, Maoming will supply the crude oil to be used in manufacture of the asphalt
binder. Sales of crude oil are not affected by seasonal factors. The Chirico
Group does not believe the sale of asphalt binder will be affected by seasonal
factors. While the sale of crude oil is not dependent upon a single or a few
customers, The Chirico Group believes the sale of asphalt binder will be to only
a few asphalt manufacturers or to a single wholesaler. At the present time,
there are relatively few manufacturers of asphalt binder and asphalt in the
Peoples Republic of China. The Chirico Group expects competition to increase
when road building increases in that country.
The central government of the Peoples Republic of China has a five-year plan to
spend $10.8 billion USD equivalent, with annual increases of $2.4 to $3.6
billion USD equivalent to develop a highway system of 3.5 million kilometers to
be built throughout China. This will include new roadway systems between the
45,000 villages and major economic centers, and up grading of rural road system,
tunnels and bridges. The primary road construction material to be used is
asphalt with binders.
The Chirico Group employs only Mr. Chirico on full time basis in the U.S. The
Chirico Group employs five full time personnel in Shanghai in managerial
capacities. The Chirico Group engages a variety of consultants, managers and
other employees as required for specific projects.
Information about the revenues generated from the sales in the U.S. and in China
during each of the last three fiscal years ended December 31, 2003, will be
provided by amendment upon completion of an audit of The Chirico Group's
financial statements for those fiscal years.
The Chirico Group's long-lived assets are located primarily in the countries
where it does business and, at the present time, are not believed to be
material. Information about the current book value and remaining useful life of
these assets will be provided by amendment of this report upon completion of an
audit of The Chirico Group's financial statements.
8-K 5th Page of 24 TOC 1st Previous Next Bottom Just 5th
The asphalt binder to be manufactured using its proprietary process by The
Chirico Group under its joint venture with Maoming meets U.S. DOT specifications
and current Chinese specifications. The Chirico Group faces the possibility,
however unlikely, that China may change its standards for asphalt in a way that
The Chirico Group's product cannot satisfy.
Description of Property
-----------------------
The Chirico Group does not own any material plant and equipment at the present
time.
Security ownership of certain beneficial owners
-----------------------------------------------
The following table presents information known to the registrant regarding
persons (including any "group" as that term is used in section 13(d)(3) of the
Exchange Act) who is the beneficial owner of more than five percent of any class
of the registrant's voting securities following the acquisition of The Chirico
Group, as described in Item 1.01.
Holders of voting, convertible preferred stock
----------------------------------------------
Name & Address Number of Shares Percent of Class
Anthony Chirico 1,800,000 100%
Suite 402, 105 Elm Street
Old Saybrook, Connecticut 06475
All directors and officers
as a group 1,800,000 100%
Mr. Chirico holds legal title to with beneficial ownership of 1,679,673 shares
of Class C Voting, Convertible Preferred Stock and holds a proxy to vote 120,327
shares of the preferred stock owned legally by all other former stockholders of
The Chirico Group and seven creditors of the registrant. All other former
stockholders of The Chirico Group and the seven creditors beneficially own
approximately 6.7 percent of the 1.8 million shares of preferred stock; amount
of share plus percentage to be negotiated down. Each share of the preferred
stock has fifty-six votes on matters submitted to stockholders for approval and
coverts automatically into ninety percent of the registrant's common stock
issued an outstanding immediately following the conversion. Mr. Chirico is a
director and the president of the registrant.
Holders of common stock
-----------------------
This information will be provided by amendment.
All ownership is both legal and beneficial, unless otherwise stated, except a
portion of the common stock may be held in brokerage accounts in street name.
In connection with the conversion of the preferred stock into eighteen million
shares of common stock, the 100 million shares common stock expected to be
issued and outstanding prior thereto will be consolidated into two million
shares of common stock.
8-K 6th Page of 24 TOC 1st Previous Next Bottom Just 6th
Directors and executive officers
--------------------------------
The following table sets forth the names, ages, all positions held with the
registrant and The Chirico Group and the year these persons became a director of
the registrant of all directors and executive officers.
Name Age Positions held Directors since
Anthony Chirico 51 Director and President
Treasurer and Secretary 2004
of the registrant and of
The Chirico Group
James Smith 45 Vice president for China n/a
of The Chirico Group
Mr. Chirico was elected as a director and the president of the registrant
pursuant to the Agreement for Exchange of Stock among the registrant and The
Chirico Group and its stockholders.
Anthony Chirico, director and president of the registrant beginning August 18,
2004, is the founder of The Chirico Group and has been its president since
inception, as a successor to the business Nanuet Co. which he founded in the mid
1980s. Mr. Chirico has conducted business in thirty-two countries since 1977.
He was the first independent television syndicator to sell American cartoons to
China such as My Little Pony and He Man & She Ra Princess of Power. His first
international event was the Munich Olympics in 1972 with Up With People, Inc.
Anthony is a skilled intercultural negotiator with expertise in business
development, marketing, and advertising & promotional campaigns. Mr. Chirico
earned a B.B.A. degree in business administration and marketing from Boise State
University.
James Smith is The Chirico Group's vice president for China and lives in
Shanghai. Mr. Smith has conducted business in Asia since 1982, concentrating
his efforts in mainland China. He has developed an extensive network of
relations with Chinese industrial enterprises within the garment, automotive,
industrial complex, construction, petrochemical, metallurgical, petroleum and
chemical industries. His expertise is in project management in China and Asia.
Mr. Smith earned Masters and B.A. degrees in economics and languages from
University of Victoria and East China University, respectively.
Key employees
-------------
Judy King is a key employee who handles The Chirico Group's marketing efforts
and projects. She has been with the company since 1991. Ms King is a Chinese
national. She has conducted business within China for local and international
companies since 1984. Her expertise includes legal affairs, documentation,
translation, trade and economic law, and business and government contacts. Ms.
King is fluent in all Chinese languages, English, and Russian. She earned a
degree from East China University in international business and affairs.
Jack Bow is The Chirico Group's U.S. West Coast representative, handling all
aspects from marketing to business liaison. He has conducted business in the
United States since 1978 with a focus on California and Arizona. He has worked
with numerous businesses and corporations in a variety of industries. His
expertise is in business loan financing and lending. He earned a B.B.A. degree
in business administration from the University of Arizona.
8-K 7th Page of 24 TOC 1st Previous Next Bottom Just 7th
David Liu handles all technical transfer data, testing and plant processing. He
has been with The Chirico Group since 1995 and is a Chinese national. Mr. Liu
has been actively involved in the petroleum and chemical industry in China. His
expertise is in taking product specifications and developing the engineering and
plant process flow charts to create the product. He earned a degree from
Beijing Technical University in engineering and chemistry.
Audit committee information
---------------------------
The registrant does not have an audit committee at the present time.
Executive Compensation
----------------------
Mr. Chirico will be paid annual cash compensation of $125,000 and may be paid
performance bonuses, stock options and other annual and long term compensation
as and when determined by the Board of Directors.
Complete information about compensation paid to prior executive officers during
the three fiscal years ended December 31, 2003 will be included in the
registrant's annual report on form 10-K for 2003.
The registrant does not have any pension, profit sharing, retirement, option,
long-term incentive, stock appreciation rights or other similar plans.
Transactions with management and others.
----------------------------------------
During the fiscal year ended December 31, 2003, the registrant did not enter
into any transactions with management or any related party. In connection with
the acquisition of The Chirico Group, the registrant liquidated indebtedness to
Frank Pinizzotto in the amount of $174,000 for an as yet undetermined number of
shares of common stock. At the time of approval to pay the indebtedness in
common stock, Mr. Pinizzotto was a director and president of the registrant.
Legal Proceedings
-----------------
The Chirico Group is not engaged in any legal proceedings.
The registrant is named as a co-defendant, but not served, in a suit for
wrongfully refusing to remove a restrictive legend from common stock issued
without registration after two years from the date of issue. The name of the
parties to the suit, the case number and the court will be provided by amendment
to this report. The plaintiff claims a loss of approximately $360,000. The
registrant believes that another defendant to the suit may have settled for part
of this amount. In the event the registrant is served properly, the registrant
intends to defend the suit on grounds that the plaintiff failed to perform the
services for which it received the stock as compensation.
Description of Class C Voting, Convertible Preferred Stock issued in exchange
for stock of The Chirico Group
--------------------
Out of the five million shares of the registrant's authorized preferred stock
1.8 million shares have been classified as Class C Voting, Convertible Preferred
Stock, each share of which shall be entitled to fifty-six votes on all matters
submitted to the holders of the common stock for approval, voting together with
the common stock as a single class and not separately, shall be automatically
converted in the aggregate into the greater of eighteen million or ninety
percent of the shares of common stock of the registrant issued and outstanding
immediately following a reverse split to two million shares from one hundred
million shares of common stock immediately issued and outstanding immediately
prior to the conversion of the preferred stock, is be entitled to receive
dividends only when and as declared on, and not in preference to, the common
stock and then in an amount determined as if the preferred stock had been then
converted into common stock and shall be entitled to participate in any
distribution of the registrant's assets upon winding up of its affairs in pari
passu with the common.
8-K 8th Page of 24 TOC 1st Previous Next Bottom Just 8th
Item 2.02 Results of Operations and Financial Condition.
NOT APPLICABLE
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
NOT APPLICABLE
Item 2.04 Triggering Events That Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement.
NOT APPLICABLE
Item 2.05 Costs Associated with Exit or Disposal Activities.
NOT APPLICABLE
Item 2.06 Material Impairments.
NOT APPLICABLE
Section 3 - Securities and Trading Markets.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing
NOT APPLICABLE
Item 3.02 Unregistered Sales of Equity Securities
The registrant issued 1.8 million shares of its Class C Voting, Convertible
Preferred Stock to Mr. Chirico and approximately sixty other stockholders of The
Chirico Group as consideration for the registrant's exchange of stock with The
Chirico Group and seven creditors of the registrant in payment of indebtedness
to them. The exchange occurred on August 18, 2004. Upon conversion of preferred
stock, 17,275,000 shares the common stock will be issued directly to the former
stockholders of The Chirico Group, and 725,000 shares will be issued to former
creditors of the registrant. No commissions or other compensation was paid in
connection with the issuance of the voting, convertible preferred stock and no
broker was involved in the transaction. The voting, convertible preferred stock
certificate and the common stock to be issued in conversion thereof will contain
a restrictive legend and will be subject to Rule 144 under the Securities Act of
1933. The registrant is relying on Section 3 and Rule 504 thereunder for an
exemption from registration under the Securities Act of 1933, in that the
voting, convertible preferred stock is valued as if currently convertible into
common stock at $.01 per share, or an aggregate of $180,000, the price at which
the registrant plans to issue or has issued common stock for cash. Upon
conversion existing Chirico Group shareholders will receive an equal dollar
amount of stocks in the new company per their initial investment plus a doubling
of issued share.
8-K 9th Page of 24 TOC 1st Previous Next Bottom Just 9th
The registrant plans to issue an as yet undetermined number of shares of common
stock shares to Mr. Pinizzotto in liquidation of $174,000 of indebtedness, in
connection with the acquisition of The Chirico Group. The registrant is relying
on Section 3 of the Securities Act of 1933 and Rule 504 thereunder for an
exemption from registration under the Securities Act, valuing the common stock
at the full amount of the indebtedness, rather than at $.01 per share as
described above.
Item 3.03 Material Modification to Rights of Security Holders
NOT APPLICABLE
Section 4 - Matters Related to Accountants and Financial Statements
Item 4.01 Changes in Registrant's Certifying Accountants.
NOT APPLICABLE
Item 4.02 Non-Reliance on Previously Issued Financial Statements or a Related
Audit Report or Completed Interim Review.
NOT APPLICABLE
Section 5 - Corporate Governance and Management
Item 5.01 Changes in Control of Registrant
See Item 1.01 above for a description of the transaction in which control of the
registrant changed.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
NOT APPLICABLE
Item 5.04 Temporary Suspension of Trading Under Registrant's Employee Benefit
Plans.
NOT APPLICABLE
Item 5.05 Amendments to the Registrant's Code of Ethics, or Waiver of a
Provision of the Code of Ethics.
NOT APPLICABLE
Section 6 [Reserved]
Section 7 - Regulation FD
Item 7.01 Regulation FD Disclosure.
8-K 10th Page of 24 TOC 1st Previous Next Bottom Just 10th
NOT APPLICABLE
Section 8 - Other Events
Item 8.01 Other Events
NOT APPLICABLE
Section 9 - Financial Statements and Exhibits
Item 9.01. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial statements of business acquired.
Financial statements of The Chirico Group will be filed within sixty days
following the date of this report.
(b) Pro forma financial information.
Pro forma financial information will be filed within sixty days following the
date of this report.
(c) Exhibits
Exhibit 2. Stock Exchange Agreement between the registrant and The Chirico
Group and its stockholders.
Exhibit 4. Certificate of Designation of Preferred Stock
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Vitallabs, Inc.
By /s/ Anthony Chirico
Anthony Chirico, President
(Principal executive and operating officer)
August 18, 2004
8-K 11th Page of 24 TOC 1st Previous Next Bottom Just 11th
Exhibit 2. Stock Exchange Agreement dated August 18, 2004
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT, made and entered into as of August 18, 2004,
by and among Vitallabs, Inc., a Nevada corporation, Chirico Group, Inc.
("Chirico"), a Nevada corporation, and Anthony Chirico, a natural person and
controlling stockholder of Chirico.
W I T N E S S E T H :
WHEREAS, Vitallabs is a dormant company whose charter has been revoked by
administrative action of the State of Nevada, whose stock is traded on the "Pink
Sheets" and who is delinquent with its reporting requirements with the U.S.
Securities and Exchange Commission; and
WHEREAS, Chirico is engaged in international commerce, in particular, with
a focus on China; and
WHEREAS, Vitallabs desires to acquire Chirico as a wholly owned subsidiary,
for Chirico's management to become Vitallabs' management and for Chirico's
stockholders to become the majority stockholders of Vitallabs; and
NOW, THEREFORE, in consideration of the premises herein before set forth,
in reliance hereon and the mutual promises and respective representations and
warranties of the parties, one to another made herein, and the reliance of each
party upon the other(s) based hereon and other good and valuable consideration,
the receipt and sufficiency of which the parties acknowledge, the parties agree,
for purposes of consummating the exchange of stock as contemplated herein, as
follows:
ARTICLE I
PRELIMINARY MATTERS
-------------------
Section 1.01. Recitals. The parties acknowledge the recitals herein above
--------
set forth in the preamble are correct, are, by this reference, incorporated
herein and are made a part of this Agreement.
Section 1.02. Exhibits and Schedules. Exhibits (which are documents to be
----------------------
executed and delivered at the Closing by the party identified therein or in the
provision requiring its delivery) and Schedules (which are attachments setting
forth information about a party identified therein or in the provision requiring
its attachment) referred to herein and annexed hereto are, by this reference,
incorporated herein and made a part of this Agreement, as if set forth fully
herein. Schedules may be attached subsequent to the execution, delivery and
partial performance of the conditions to the Closing of and covenants of this
Agreement.
Section 1.03. Use of words and phrases. Natural persons may be identified
------------------------
by last name, with such additional descriptors as may be desirable. The words
"herein," "hereby," "hereunder," "hereof," "herein before," "hereinafter" and
any other equivalent words refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision hereof. The words, terms and
phrases defined herein and any pronoun used herein shall include the singular,
plural and all genders. The word "and" shall be construed as a coordinating
conjunction unless the context clearly indicates that it should be construed as
a copulative conjunction.
Section 1.04. Accounting terms; Money. All accounting terms not otherwise
-----------------------
defined herein shall have the meanings assigned to them under generally accepted
accounting principles unless specifically referenced to regulatory accounting
principles. All references to "$" or dollars is to United States dollars.
Section 1.05. Calculation of time lapse or passage; Action required on
--------------------------------------------------------
holidays. When a provision of this Agreement requires or provides for the
--------
calculation of the lapse or passage of a time period, such period shall be
calculated by treating the event which starts the lapse or passage as zero;
provided, that this provision shall not apply to any provision which specifies a
certain day for action or payment, e.g. the first day of each calendar month.
Unless otherwise provided, the term "month" shall mean a period of thirty days
and the term "year" shall mean a period of 360 days, except that the terms
"calendar month" and "calendar year" shall mean the actual calendar period
indicated. If any day on which action is required to be taken or payment is
required to be made under this Agreement is not a Business Day (Business Day
being a day on which national banks are open for business where the actor or
payor is located), then such action or payment shall be taken or made on the
next succeeding Business Day.
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Section 1.06. Use of titles, headings and captions. The titles, headings
------------------------------------
and captions of articles, sections, paragraphs and other subdivisions contained
herein are for the purpose of convenience only and are not intended to define or
limit the contents of said articles, sections, paragraphs and other
subdivisions.
Section 1.07. Parent corporation includes subsidiary corporations.
---------------------------------------------------
Reference to any parent corporation includes its wholly and majority owned
subsidiary corporation(s), joint ventures and other operations and activities,
including "off balance sheet" activities and transactions. Schedule "F" sets
forth with respect to Chirico all wholly and majority owned subsidiary
corporation(s), joint ventures and other operations and activities, including
"off balance sheet" activities and transactions. Vitallabs does not have any
wholly and majority owned subsidiary corporation(s), joint ventures and other
operations and activities, including "off balance sheet" activities and
transactions.
ARTICLE II
TERMS OF THE TRANSACTIONS
------------------------
Section 2.01. Purchase and sale transaction. In accordance with the
-----------------------------
terms of this Agreement, on the Closing Date, as defined hereinafter, (i) all
holders of Chirico's capital stock, including holders of instruments convertible
into or exercisable for Chirico's capital stock, will assign, transfer and
deliver to Vitallabs all of Chirico's capital stock, including instruments
convertible into or exercisable for Chirico's capital stock, subject to
representations and warranties set forth herein; and (ii) Vitallabs will receive
and accept all of Chirico's capital stock, including instruments convertible
into or exercisable for Chirico's capital stock, subject to representations and
warranties set forth herein. Schedule "A" sets forth the name and address of
each registered holder of Chirico's capital stock and instrument convertible
into or exercisable for Chirico's capital stock, together with the number of
shares held or the number of shares the instrument entitles the holder to
receive.
Section 2.02. Consideration. In consideration for Vitallabs' purchase of
-------------
Chirico's capital stock and instruments convertible into or exercisable for its
capital stock, Vitallabs will issue 1,800,000 shares of its voting, convertible
preferred stock (as described below) to Chirico's stockholders and holders of
instruments convertible into or exercisable for Chirico's capital, the global
certificate representing such preferred stock to be issued in the name of
Anthony Chirico, as custodian.
Section 2.03. Federal income tax treatment. At or before the Closing
----------------------------
Date, the parties shall agree on the value of each of the assets purchased and
sold, as set forth in Schedule "A", for federal income tax purposes.
Section 2.04. Press releases. No party will issue a press release
--------------
regarding the subject matter of this Agreement and the transaction contemplated
hereby, either before or after closing, without the prior approval thereof by
the other party and its counsel.
Section 2.05. Transaction costs. Each party shall pay all costs and
------------------
expenses which it incurs in connection with this Agreement and the transactions
contemplated hereby.
ARTICLE III
CLOSING OF THE TRANSACTION
--------------------------
Section 3.01. Location, date and time of the Closing. The Closing of the
--------------------------------------
transaction contemplated by this Agreement shall take place immediately
following the signing of this agreement but no later than August 23, 2004.
Exhibits, Schedules and Obligations to be delivered, as soon thereafter as
practicable, ("Closing Date"), but in no event later than March 18, 2005. The
acts and deliveries which occur on the Closing Date for the purpose of
consummating the transactions contemplated by this Agreement and the event
itself are referred to herein as the "Closing". Chirico will merge taking
control of Vitallabs upon signing of this agreement and will trade with all
funds going into the new entity of Chirico Group with a name and ticket symbol
change soon after.
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Section 3.02. Chirico's obligations at the Closing. At the Closing,
------------------------------------
Chirico will deliver to Vitallabs:
(a) Certificates representing all of Chirico's issued and outstanding
capital stock and all instruments convertible into or exercisable for Chirico's
capital stock, all duly endorsed by the registered owner thereof for transfer to
Vitallabs;
(b) Officers' and Secretary's and Certificates of Chirico in the form set
forth in Exhibits "A" and "B", respectively;
Section 3.03. Vitallabs' obligations at the Closing. At the Closing,
-------------------------------------
Vitallabs will deliver:
(a) Officers' and Secretary's Certificates of Vitallabs in the form set
forth in Exhibits "A" and "B", respectively.
(b) Resignations of Vitallabs' directors and officers, unless waived by
Chirico's president.
(c) A lock-up agreement covering such holders of Vitallabs' common stock
and numbers of shares owned thereby as Vitallabs and Chirico shall agree.
(d) Upon signing of this agreement Vitallabs will provide to Chirico
executed agreements- Certificate of Designation and Actions by Written Consent
of the Board of Directors.
(e) Vitallabs to provide a fund (cash or stock) for any past business
issues, lawsuits or litigations.
Section 3.04. Closing Memorandum and receipts. As evidence that all
-------------------------------
parties deem the Closing to have been completed and the transactions
contemplated by this Agreement to have been consummated, the parties jointly
will execute and deliver a Closing Memorandum, in the form of Exhibit "C",
acknowledging such completion and consummation.
Section 3.06. Waiver of conditions. Notwithstanding Section 11.03, any
--------------------
condition to the Closing which is to the benefit of any party and which is not
satisfied prior to or at the Closing will be deemed to be waived by the
benefited party or otherwise satisfied and waived by virtue of that party
executing the Closing Memorandum, except to the extent any such unsatisfied or
unperformed condition is expressly preserved by listing it in the Closing
Memorandum for satisfaction or performance after the Closing.
Section 3.07. Further assurances. At any time and from time to time after
-------------------
the Closing, at the reasonable request of any party and without further
consideration, any other party(ies) shall execute and deliver such other
instruments and documents as such requesting party may deem reasonably desirable
or necessary to complete and confirm the transactions contemplated by this
Agreement.
Section 3.08. Conditions precedent to Vitallabs' obligations. All
----------------------------------------------
obligations of Vitallabs hereunder are subject, at the option of Vitallabs, to
the fulfillment of each of the following conditions at or prior to the Closing,
and Chirico shall exert its best efforts to cause each such condition to be so
fulfilled:
(a) All representations and warranties of Chirico contained herein or in
any document delivered pursuant hereto shall be true and correct in all material
respects when made and shall be deemed to have been made again and given at and
as of the date of the Closing of the transaction contemplated by this Agreement,
and shall then be true and correct in all material respects, except for changes
in the ordinary course of business after the date hereof in conformity with the
representations, covenants and agreements contained herein.
(b) All covenants, agreements and obligations required by the terms of
this Agreement to be performed by Chirico at or before the Closing shall have
been duly and properly performed in all material respects to Vitallabs'
reasonable satisfaction.
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(c) Since the date of this Agreement there shall not have occurred any
material adverse change in the condition or prospects (financial or otherwise),
business, properties or assets to be acquired.
(d) All documents required to be delivered to Vitallabs at or prior to the
Closing shall have been so delivered.
(e) The transaction contemplated by this Agreement shall have been
approved by Chirico's board of directors and all of its stockholders.
(f) None of Chirico's assets or business shall have suffered or incurred a
material damage, destruction or loss not fully covered by insurance and which
has a materially adverse affect on its business and operations.
(g) Vitallabs shall have received a certificate of good standing for
Chirico issued by the secretary of state of its state of incorporation and of
each state in which it is qualified or required to be qualified to do business
as a foreign corporation or the equivalent from any foreign nation.
(h) Vitallabs shall have received financial statements for Chirico for
2004 and 2003 and the interim period(s) subsequent thereto, as may be required
to satisfy the reporting requirements of the Securities Exchange Act of 1934, as
amended.
(i) All Schedules identified in this Agreement which contain information
about Chirico which are not attached at the execution hereof have been attached
prior to the Closing.
Section 3.09. Conditions precedent to the Chirico' obligations. All
------------------------------------------------
obligations of Chirico at the Closing are subject, at the option of Chirico, to
the fulfillment of each of the following conditions at or prior to the Closing,
and Vitallabs shall exert its best efforts to cause each such condition to be so
fulfilled.
(a) All representations and warranties of Vitallabs contained herein or in
any document delivered pursuant hereto shall be true and correct in all material
respects when made and shall be deemed to have been made again and given at and
as of the date of the Closing of the transaction contemplated by this Agreement,
and shall then be true and correct in all material respects, except for changes
in the ordinary course of business after the date hereof in conformity with the
representations, covenants and agreements contained herein.
(b) All covenants, agreements and obligations required by the terms of
this Agreement to be performed by Vitallabs at or before the Closing shall have
been duly and properly performed in all material respects to Chirico's
reasonable satisfaction.
(c) Since the date of this Agreement there shall not have occurred any
material adverse change in the condition or prospects (financial or otherwise),
of Vitallabs, including any regulatory action, investigation, suit or
stockholder suit.
(d) All documents required to be delivered to Chirico at or prior to the
Closing shall have been so delivered.
(e) The transaction contemplated by this Agreement shall have been
approved by Vitallabs' board of directors.
(f) Chirico shall have received from Vitallabs a certificate of good
standing issued by the secretary of state of its state of incorporation and of
each state in which it is qualified or required to be qualified to do business
as a foreign corporation.
(g) Chirico shall have received audited financial statements for Vitallabs
for 2004 and 2003 and the interim period(s) subsequent thereto, as may be
required to satisfy the reporting requirements of the Securities Exchange Act of
1934, as amended, which are reasonably satisfactory to Chirico.
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(h) Vitallabs shall be current in its reporting obligations under the
Securities Exchange Act of 1934, as amended. To be relisted on the bulletin
board exchange.
(i) Chirico shall have received audited financial statements for Vitallabs
for 2004 and 2003 and the interim period(s) subsequent thereto, as may be
required to satisfy the reporting requirements of the Securities Exchange Act of
1934, as amended.
(j) All Schedules identified in this Agreement which contain information
about Vitallabs which are not attached at the execution hereof have been
attached prior to the Closing.
(k) Vitallabs will hold Chirico harmless from all past debt, lawsuits and
litagations and will provide a written statement from the major stockholders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
---------------------------------------------
Section 4.01. Chirico's representations and warranties. Chirico
----------------------------------------
represents and warrants to Vitallabs that:
(a) Chirico is duly incorporated and existing corporation in good standing
under the laws of its state of incorporation and has full corporate power to
execute, deliver and perform this Agreement.
(b) This Agreement has been duly and validly authorized, executed and
delivered by Chirico and constitutes the legal, valid and binding obligation of
Chirico enforceable against it, in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization and other laws of,
relating to or affecting stockholders and creditors rights generally and to
general equitable principles.
(c) The execution of this Agreement and consummation of the transactions
contemplated hereby does not conflict with and will not result in any adverse
consequences to or breach of any agreement, mortgage, instrument, judgment,
decree, law or governmental regulation, license, permit or authorization by
Chirico or in the loss, forfeiture or waiver of any rights, license,
authorization or franchise owned by Chirico, from which Chirico benefits or
which is desirable in the conduct of Chirico's business.
(d) Except for such actions as may have been taken, no further action by
or before any governmental body or authority of the United States of America or
any state or subdivision thereof or any self-regulatory body to which Chirico is
subject or any foreign nation or subdivision or agency thereof is required in
connection with the execution and delivery of this Agreement by Chirico and the
consummation of the transactions contemplated hereby.
(e) The information Chirico has delivered to Vitallabs was, to the
knowledge of Chirico, on the date reflected in each such item of information
accurate in all material respects and, to the knowledge of Chirico, such
information at the date hereof taken as a whole provides, to the knowledge of
Chirico, full and fair disclosure of all material information relating to
Chirico, to the knowledge of Chirico, and do not omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(f) Chirico has conducted its business in the ordinary course for the last
three years or since inception, whichever is less.
(g) Neither Chirico nor any employee, to Chirico knowledge, has since
inception given or agreed to give any gift or similar benefit valued at more
than $20 annually to any customer, supplier, governmental employee or other
person who is or may be or have been in a position to help or hinder Chirico's
business which might subject Chirico to damage or penalty in civil, criminal or
governmental litigation or proceedings.
(h) Chirico's financial statements, when delivered to Vitallabs will have
been prepared in accordance with accounting principles generally accepted in the
United States consistently applied and maintained throughout the periods
indicated, fairly present the financial condition of Chirico in all material
respects at the dates and the results of operations for the periods indicated,
contain all normally recurring adjustments and do not omit to disclose any
contingent, undisclosed or hidden liabilities. Chirico' financial records are
maintained in accordance with good business practice.
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(i) Chirico has good, marketable and, as appropriate, insurable title to
all of the properties and assets, including intangible assets, if any, which it
owns or uses in Chirico's business or purports to own, including, without
limitation, those reflected in its books and records and in its most recent
balance sheet, both tangible and intangible, (excluding inventory sold after the
most recent balance sheet date in the ordinary course of business). Except as
reflected on Schedule "B", none of the properties and assets are subject to any
mortgage, pledge, lien, charge, security interest, encumbrance, restriction,
lease, license, easement, liability or adverse claim of any nature whatsoever,
direct or indirect, whether accrued, absolute, contingent or otherwise, except
as expressly set forth in the notes to Chirico's financial statements as
securing specific liabilities or subject to specific capital leases and have
arisen only in the ordinary course of business. Except as noted on Schedule
"A", all of the properties and assets owned, leased or used by Chirico are in
good operating condition and repair, are suitable for the purposes used, are
adequate and sufficient for all current operations and are directly related to
Chirico's business.
(j) All of the material contracts, agreements, leases, licenses and
commitments of Chirico (other than those which have been fully performed),
copies of all of which have been or will be delivered to Vitallabs, are valid
and binding, enforceable in accordance with their respective terms, in full
force and effect and, except as noted in Schedule "C", there is not there under
with respect to any party thereto any existing default or event, which after the
giving of notice or lapse of time or both, would constitute a default or result
in a right to accelerate or loss of rights and none of such contracts,
agreements, leases, licenses and commitments is, either when considered singly
or in the aggregate with others, unduly burdensome, onerous or materially
adverse to Chirico's business, properties, assets, earnings or prospects or
either before or after the Closing, to result in any material loss or liability.
(k) There is no claim, legal action, suit, arbitration, governmental
investigation, or other legal or administrative proceeding, nor any order,
decree, judgment or judgment in progress, pending or in effect or to Chirico's
knowledge threatened, against or relating to Chirico, its directors, officers or
employees with respect to Chirico or its business or for which Chirico may have
an indemnity obligation, it properties, assets or business or the transaction
contemplated by this Agreement and Chirico does not know or have any reason to
be aware of any basis for the same, including any basis for a claim of sexual
harassment or racial or age discrimination, except as set forth in Schedule "D".
(l) All taxes, including without limitation, income, property, special
assessments, sales, use, franchise, intangibles, employees' income withholding
and social security taxes, including employer's contribution, other than those
for which a return or deposit is not yet due and have been disclosed to
Vitallabs, imposed by the United States or any foreign nation or any state,
municipality, subdivision, authority, which are due and payable, and all
interest and penalties thereon, unless disputed in good faith in proper
proceedings and reserved for or set aside, have been paid in full and all tax
returns required to be filed in connection therewith have been accurately
prepared and timely filed and all deposits required by law to be made by Chirico
with respect to employees' withholding and social security taxes have been made.
Chirico is not and has no reason to believe that it will be the subject of an
audit by any taxing authority. There is not now in force any extension of time
with respect to the date when tax return was or is due to be filed, or any
waiver or agreement by Chirico for the extension of time for the assessment of
any tax and Chirico is not a "consenting corporation" within the meaning of
Section 341(f)(1) of the U.S. Tax Code.
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(m) Chirico does not have any employee benefit, pension or profit sharing
plans subject to ERISA and no such plans to which Chirico is obligated or
required to make contributions.
(n) None of Chirico' employees are represented by a collective bargaining
agent or subject to a collective bargaining agreement and Chirico considers its
relations with its employees as a whole to be good. Chirico has disclosed to
Vitallabs all employee salary, compensation and benefit agreements and no
employee has a written employment agreement.
(o) No person has guaranteed any obligation of Chirico, and Chirico has
not guaranteed the obligation of any other person.
(p) Chirico and its management have no reason to believe or expect and do
not believe or expect that any event or events will occur which will result in
Chirico producing results of operations to be Chirico's recent operations.
Section 4.02. Vitallabs' representations and warranties. Vitallabs
-----------------------------------------
represents and warrants to Chirico that:
(a) Vitallabs is a duly incorporated and on the Closing date will be an
existing corporation in good standing under the laws of its state of
incorporation and will have full corporate power to execute and deliver this
Agreement.
(b) This Agreement has been duly and validly authorized, executed and
delivered by Vitallabs and constitutes the legal, valid and binding obligation
of Vitallabs, subject to any legal impediments to contracting obligations during
a period when its charter is subject to revocation, enforceable against
Vitallabs in accordance with its terms subject, as to enforceability, to
bankruptcy, insolvency, reorganization and other laws of, relating to or
affecting shareholders and creditors rights generally and to general equitable
principles.
(c) Except for such actions as may have been taken, no further action by
or before any governmental body or authority of the United States of America or
any state thereof is required in connection with the execution and delivery of
this Agreement by Vitallabs and the consummation of the transactions
contemplated hereby, other than the reinstatement of Vitallabs' charter by its
state of incorporation.
(d) The information Vitallabs has delivered to Chirico was on the date
reflected in each such item of information accurate in all material respects and
such information at the date hereof as a whole did not contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(e) Vitallabs' audited financial statements, when delivered to Chirico
will have been prepared in accordance with accounting principles generally
accepted in the United States consistently applied and maintained throughout the
periods indicated, fairly present the financial condition of Vitallabs in all
material respects at the dates and the results of operations for the periods
indicated, contain all normally recurring adjustments and do not omit to
disclose any contingent, undisclosed or hidden liabilities. Vitallabs'
financial records are maintained in accordance with good business practice
(f) Vitallabs is not engaged in any business and does not have any assets.
(g) All of Vitallabs' debts, fixed and contingent, are as set forth in
Schedule "E".
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Section 4.03. Additional representations and warranties; Nature and
------------------------------------------ ----------
survival of representation and warranties; Remedies. All statements of fact
---------------------------------------------
contained in this Agreement, any certificate delivered pursuant to this
Agreement, or any letter, document or other instrument delivered by or on behalf
of Chirico or of Vitallabs, and their respective officers, pursuant to the terms
of this Agreement shall be deemed representations and warranties made by Chirico
or by Vitallabs, respectively, as the case may be, to each other under this
Agreement. For purposes of this Section 4.03 and Section 10.01 only, any party
or other person seeking to enforce, or claiming the benefit of, any
representation and warranty under this Agreement is called a Claimant, and any
party or other person against whom a right is claimed is called a Defendant.
All representations and warranties of the parties shall survive the Closing and
all inspections, examinations or audits on behalf of the parties; provided,
however, that all representations and warranties shall terminate and expire, and
be without further force and effect whatever from and after the one year from
the Closing date, and none of Vitallabs or Chirico, or stockholders thereof,
shall have any liability whatsoever on account of any inaccurate representation
or warranty or for any breach of warranty, unless a Claimant shall, on or prior
to the expiration of such one year period, serve written notice on a Defendant,
with a copy to the Defendant's counsel, setting forth in reasonable detail the
breach and any direct, incidental or consequential damages (including amounts)
the Claimant may have suffered as a result of such breach.
ARTICLE V
COVENANTS OF THE PARTIES
------------------------
Section 5.01. Conduct of business prior to Closing.
------------------------------------
(a) From the date hereof to the Closing, Chirico will conduct its business
and affairs only in the ordinary course and consistent with its prior practice
and shall maintain, keep and preserve its assets and properties in good
condition and repair and maintain insurance thereon in accordance with present
practices, it will use its best efforts (i) to preserve its business and
organization intact, (ii) to keep available to Vitallabs the services of
Chirico's present directors, officers, employees, agents and independent
contractors, (iii) to preserve for the benefit of Vitallabs the goodwill of
suppliers, customers, distributors, landlords and others having business
relations with it, and (iv) to cooperate and use reasonable efforts to obtain
the consent of any landlord or other party to any lease or contract with Chirico
where the consent of such landlord or other party may be required by reason of
the transactions contemplated hereby.
(b) From the date hereof to the Closing, Chirico shall not (i) acquire or
dispose of any material assets, (ii) engage in any extraordinary transactions
without Vitallabs' prior approval, including but not limited to, directly or
indirectly, soliciting, entertaining, encouraging inquiries or proposals or
entering into negotiation or agreement with any third party for sale of business
or assets by Chirico, sale of equity securities or merger, consolidation or
combination with any company, (iii) grant any salary or compensation increase to
any employee, or (iv) make any commitment for capital expenditures, other than
as disclosed to Vitallabs and approved by it.
(c) From the date hereof to the Closing, Vitallabs shall not begin or
acquire any business or acquire any assets, other than as disclosed to Chirico
and approved by it.
(d) Both Vitallabs and Chirico may sell common stock or convertible notes
for the purpose of acquiring the funding necessary to complete the transactions
contemplated by this Agreement.
Section 5.02. Notice of changes in information. Each party shall give the
--------------------------------
other party prompt written notice of any change in any of the information
contained in their respective representations and warranties made in Article IV,
or elsewhere in this Agreement, or the exhibits and schedules referred to herein
or any written statements made or given in connection herewith which occurs
prior to the Closing.
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Section 5.03. Notice of extraordinary changes. Chirico shall advise
-------------------------------
Vitallabs with respect to any of the following outside of ordinary course of
business or which are materially adverse: (i) the entering into and
cancellation or breach of contracts, agreements, licenses, commitments or other
understandings or arrangements to which Chirico is a party, including, without
limitation, purchase orders for any item of inventory and commitments for
capital expenditures or improvements, or (ii) any changes in purchasing, pricing
or selling policy, or, any changes in its sales, business or employee relations
in general.
Section 5.04. Action to preserve business and assets. Notwithstanding
--------------------------------------
anything contained in this Agreement to the contrary, Chirico or Vitallabs will
not take or fail to take any action that, in Chirico or Vitallabs' reasonable
judgment, is likely to give rise to a substantial penalty or a claim for damages
by any third party against Chirico or Vitallabs, or is likely to result in
losses, or is otherwise likely to prejudice in any material respect or unduly
interfere with the conduct of its business and operations in the ordinary course
consistent with prior practice, or is likely to result in a breach by Chirico or
Vitallabs of any of its representations, warranties or covenants contained in
this Agreement (unless any such breach is first waived in writing by Chirico or
Vitallabs).
Section 5.05. Access to information and documents. Upon reasonable notice
-----------------------------------
and during regular business hours, each corporate party will give to the other
corporate party, its attorneys, accountants and other representatives full
access to its personnel (subject to reasonable approval as to the time thereof)
and all properties, documents, contracts, books and records and will furnish
copies of such documents (certified by officers, if so requested) and with such
information with respect to its business, operations, affairs and prospects
(financial and otherwise) as it may from time to time request, and the party to
whom the information is provided will not improperly disclose the same prior to
the Closing. Each corporate party will give to the other corporate party an
opportunity to ask questions and receive answers thereto in furtherance of their
respective due diligence. Any such furnishing of such information or any
investigation shall not affect that party's right to rely on the other party's
representations and warranties made in this Agreement or in connection herewith
or pursuant hereto.
Section 5.06. Confidential treatment of information. The provisions of
-------------------------------------
Exhibit "D" shall be binding upon the parties.
Section 5.07. Cooperation by the parties. Each party hereto shall
--------------------------
cooperate and shall take such further action as may be reasonably requested by
any other party in order to carry out the provisions and purposes of this
Agreement.
Section 5.08. Actions to be taken prior to Closing. Vitallabs will take
------------------------------------
the following actions concurrently with or immediately following the execution
of this Agreement:
(a) Elect Anthony Chirico as a director of Vitallabs, subject to his
delivery of letter of resignation effective in the event of automatic
cancellation of the preferred stock issued as provided in (b) below.
(b) Reinstate its charter and file a certificate of designation with
respect thereto for 1,800,000 shares of voting, convertible preferred stock,
subject to automatic cancellation in the event the Closing does not occur and to
automatic conversion into ninety percent, estimated at eighteen million shares,
of Vitallabs' common stock upon approval and consummation of the reverse stock
split described in Section 5.09 and having such other features as set forth in
Exhibit "E", and issue such preferred stock to Chirico's stockholders, subject
to transfer to Chirico in the event its business and assets, as compared to its
capital stock, is the subject of the acquisition contemplated hereby.
8-K 20th Page of 24 TOC 1st Previous Next Bottom Just 20th
(c) Vitallabs will issue all of its remaining authorized by unissued
common stock (approximately eighty-five million shares) in full satisfaction of
its outstanding debts, as set forth in Schedule "E", provided that it may
reserve approximately 500,000 shares for issuance to raise funding as provided
in Section 5.01(d).
(d) Vitallabs will file all reports pursuant to the Securities Exchange
Act of 1934, as amended, that it is required to file, containing all information
and audited financial statements required to be included therein.
(e) Vitallabs will change its business address and address of its
principal executive offices to Suite 402, 105 Elm Street, Old Saybrook, CT
06475 and Chirico will provide personnel to attend to Vitallabs' day-to-day
business.
Section 5.09. Actions to be taken after Vitallabs' SEC reports are
----------------------------------------------------
current. After Vitallabs has filed all reports pursuant to the Securities
Exchange Act of 1934, as amended, that it is required to file, Vitallabs will
obtain approval, in compliance with the proxy solicitation rules of the
Securities Exchange Act of 1934, as amended, from its stockholders for a reverse
split of its issued and outstanding one hundred million shares of common stock
such that the issued and outstanding common stock shall become two million
shares and the total number of authorized shares common stock remain at one
hundred million shares and for a change in the name of Vitallabs to such name as
the Board of Directors may suggest.
ARTICLE VII
FEDERAL INCOME TAX MATTERS
--------------------------
Section 7.01. Responsibility for understanding tax consequences. Each
-------------------------------------------------
party shall be responsible for obtaining its or his own tax advice with respect
to and understanding the federal income tax consequences of the transactions and
the federal income tax consequences thereof contemplated by this Agreement and
waives any reliance with respect thereto on any other party.
ARTICLE VIII
TERMINATION PRIOR TO CLOSING
----------------------------
Section 8.01. Termination for default. A corporate party may, by notice
-----------------------
to the other corporate party, given in the manner provided below on or at any
time prior to the Closing Date, terminate this Agreement if default shall be
made by other corporate party in the observance or in the due and timely
performance of any of any material covenants and agreements contained, made by
or imposed upon it, in this Agreement, if the default has not been fully cured
within fifteen days after receipt of the notice specifying the default.
Section 8.02. Termination for failure to Close. If the Closing does not
--------------------------------
occur on or before the date provided in Section 3.01, any party, if that party
is not then in default in the observance or in the due or timely performance of
any covenants and conditions under this Agreement, may at any time terminate
this Agreement by giving written notice to the other parties; provided, that the
parties may extend the Closing date in writing. Notice must be given 45 days and
30 days to resolve.
Section 8.03. Termination for loss of bargain. Vitallabs and Chirico may,
-------------------------------
at its option, terminate this Agreement prior to the Closing if (i) in
completion of its due diligence examination of Vitallabs or Chirico, it
discovers the existence of a material, adverse variance from the information it
has received from Vitallabs or Chirico and its controlling stockholder or form
its due diligence examination prior to the date of this Agreement, or (ii)
Vitallabs or Chirico has suffered any material damage, destruction or loss
(whether or not covered by insurance), or (iii) Vitallabs or Chirico is
prevented by order of court or administrative action from consummating the
transactions contemplated by this Agreement, whether or not Vitallabs or Chirico
has exhausted its appeals.
8-K 21st Page of 24 TOC 1st Previous Next Bottom Just 21st
ARTICLE IX
NOTICES
-------
Section 9.01. Procedure for giving notices. Any and all notices or other
----------------------------
communications required or permitted to be given under any of the provisions of
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered (excluding telephone facsimile and including receipted
express courier and overnight delivery service) or mailed by first class
certified U.S. mail, return receipt requested showing name of recipient,
addressed to the proper party.
Section 9.02. Addresses for notices. For purposes of sending notices under
---------------------
this Agreement, the addresses of the parties are as follows:
As to Chirico
And its Stockholders: Anthony Chirico, President
Chirico Group, Inc.
Suite 402
105 Elm Street
Old Saybrook, CT 06475
As to Vitallabs: Frank Pinizzotto
2410 Kent Place
Clearwater, FL 33764
Section 9.03. Change of address. A party may change its address for
-----------------
notices by sending a notice of such change to all other parties by the means
provided in Section 9.01; provided, the address for Vitallabs may not be changed
before the Closing; provided, further, that is provision shall not prevent a
change in Vitallabs' business address or the address of its principal executive
offices.
ARTICLE X
LEGAL AND OTHER COSTS
---------------------
Section 10.01. Party entitled to recover. In the event that any party
-------------------------
(the "Defaulting Party") defaults in his or its obligation under this Agreement
and, as a result thereof, the other party (the "Non-Defaulting Party") seeks to
legally enforce his or its rights hereunder against the Defaulting Party
(whether in an action at law, in equity or in arbitration), then, in addition to
all damages and other remedies to which the Non-Defaulting Party is entitled by
reason of such default, the Defaulting Party shall pay to the Non-Defaulting
Party an amount equal to all costs and expenses (including reasonable attorneys'
fees, expert witness fees, costs of depositions and discovery and costs on
appeal) paid or incurred by the Non-Defaulting Party in connection with such
enforcement or recovery of damages. Amount & payment to be made upon a mutual
agreement between parties or deterimation by arbitration or court of law.
ARTICLE XI
MISCELLANEOUS
-------------
Section 11.01. Effective date. The effective date of this Agreement shall
--------------
for all purposes be the date set forth in first paragraph hereof notwithstanding
a later actual date of execution by any individual party.
Section 11.02. Entire agreement. This writing constitutes the entire
----------------
agreement of the parties with respect to the subject matter hereof, superseding
all prior agreements, understandings, representations and warranties.
Section 11.03. Waivers. No waiver of any provision, requirement,
-------
obligation, condition, breach or default hereunder, or consent to any departure
from the provisions hereof, shall be considered valid unless in writing and
signed by the party giving such waiver, and no such waiver shall be deemed a
waiver of any subsequent breach or default of the same or similar nature.
Section 11.04. Amendments. This Agreement may not be modified, amended or
----------
terminated except by a written agreement specifically referring to this
Agreement signed by all of the parties hereto and amendment, modification or
alteration of, addition to or termination of this Agreement or any provision of
this Agreement shall not be effective unless it is made in writing and signed by
the parties.
8-K 22nd Page of 24 TOC 1st Previous Next Bottom Just 22nd
Section 11.05. Construction. This Agreement has been negotiated by the
------------
parties, section by section, and no provision hereof shall be construed more
strictly against one party than against the another party by reason of such
party having drafted such provision. The order in which the provisions of this
Agreement appear are solely for convenience of organization; and later appearing
provisions shall not be construed to control earlier appearing provisions.
Section 11.06. Invalidity. It is the intent of the parties that each
----------
provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If any provision hereof shall be
prohibited, invalid, illegal or unenforceable, in any respect, under applicable
law, such provision shall be ineffective to the extent of such prohibition,
invalidity or non enforceability only, without invalidating the remainder of
such provision or the remaining provisions of this Agreement; and, there shall
be substituted in place of such prohibited, invalid, illegal or unenforceable
provision a provision which nearly as practicable carries out the intent of the
parties with respect thereto and which is not prohibited and is valid, legal and
enforceable.
Section 11.07. Multiple counterparts. This Agreement may be executed in
---------------------
one or more counterparts, each of which shall be an original and, taken
together, shall be deemed one and the same instrument.
Section 11.08. Assignment, parties and binding effect. This Agreement,
--------------------------------------
and the duties and obligations of any party shall not be assigned without the
prior written consent of the other party(ies). This Agreement shall benefit
solely the named parties and no other person shall claim, directly or
indirectly, benefit hereunder, express or implied, as a third-party beneficiary,
or otherwise. Wherever in this Agreement a party is named or referred to, the
successors (including heirs and personal representative of individual parties)
and permitted assigns of such party shall be deemed to be included, and all
agreements, promises, covenants and stipulations in this Agreement shall be
binding upon and inure to the benefit of their respective successors and
permitted assigns.
Section 11.09. Survival of representations and warranties. The
------------------------------------------
representations and warranties made herein shall survive the execution and
delivery of this Agreement and full performance hereunder of the obligations of
the representing and warranting party, subject to the provisions of Section
4.03.
Section 11.10. Arbitration. Unless a court of competent jurisdiction
-----------
shall find that a particular dispute or controversy cannot, as a matter of law,
be the subject of arbitration, any dispute or controversy arising hereunder,
other than suit for injunctive relief which can be granted only by a court of
competent jurisdiction, shall be settled by binding arbitration in Middlesex
County, Connecticut by a panel of three arbitrators in accordance with the rules
of the American Arbitration Association; provided, that the rules of discovery
of the Circuit Court in and for Middlesex County, Connecticut shall apply and
requests for discovery in accordance therewith shall be enforceable upon
application to such court. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof or the party(ies)
against whom the award is entered. The parties may pursue all other remedies
with respect to any claim that is not subject to arbitration.
Section 11.11. Jurisdiction and venue. Any action or proceeding for
----------------------
enforcement of this Agreement and the instruments and documents executed and
delivered in connection herewith which is determined by a court of competent
jurisdiction not, as a matter of law, to be subject to arbitration as provided
in Section 11.10 or which seeks injunctive relief shall be brought and enforced
solely in the courts of the State of Connecticut in and for Middlesex County,
Connecticut, and the parties irrevocably submit to the jurisdiction of each such
court in respect of any such action or proceeding. Any suit shall not be
removed to a federal district court, nor shall venue be changed, without the
consent of all parties to the suit.
8-K 23rd Page of 24 TOC 1st Previous Next Bottom Just 23rd
Section 11.12. Applicable law. This Agreement and all amendments thereof
--------------
shall be governed by and construed in accordance with the law of the State of
Connecticut applicable to contracts made and to be performed therein.
Section 11.13. Representation of counsel. Chirico and its stockholders
-------------------------
acknowledge that Jackson L. Morris, Esq., who has drafted this agreement, has
hereby advise them that they should engage independent counsel to represent them
with respect to this Agreement and the transactions contemplated hereby and that
he has not advised them with respect thereto. The parties acknowledge that Mr.
Morris has advised that the transactions completion of certain acts and
transactions contemplated by this Agreement prior to the Closing and the sale of
securities in the United States or to U.S. citizens abroad without full and fair
disclosure of material information (in view of the lack of audited financial
information about Chirico and the delinquency in the filing of reports by
Vitallabs under the Securities Exchange Act of 1934, as amended), as well as the
completion of certain transactions contemplated hereby prior to the closing, may
involve rise to risks and liabilities which would be reduced or eliminated by
deferring such actions until Closing or such sales until the parties are in a
position to make full and fair disclosure of material information. The parties
acknowledge that Mr. Morris has not had an opportunity to undertake any legal
audit or investigation of either party to this transaction, including
examination of Vitallabs' charter documents which may affect matters related to
the issue of preferred stock contemplated by this Agreement.
Section 11:14. Chirico counsel. Chirico has the option to have an attorney
----------------
review this agreement. This agreement is contingent upon and may change after a
review by Chirico attorney. Vitallabs agrees to the review and changes to be
agreed upon.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
signed by their respective officers thereunto duly authorized and their
respective corporate seals to be hereunto affixed, the day and year first above
written.
[Corporate Seal] Vitallabs, Inc.
Attest: By: /s/ Frank Pinizzotto
Frank Pinizzotto,
President
---------------------------------
, Secretary
-------------
[Corporate Seal] Chirico Group, Inc.
Attest: By: /s/ Anthony Chirico
Anthony Chirico,
President
---------------------------------
, Secretary
-------------
8-K Last Page of 24 TOC 1st Previous Next Bottom Just 24th
Exhibit 4. Certificate of Designation of Preferred Stock
CERTIFICATE OF DESIGNATION
OF
VITALLABS, INC.
Pursuant to the provisions of Article IV, Section (2) of its Articles of
Incorporation and Sec.78.1955, Nevada Revised Statutes, Vitallabs, Inc. does
hereby designate shares of its as follows:
1. The name of the corporation is Vitallabs, Inc.
2. This Certificate of Designation was duly approved and adopted on August 18,
2004 by all the directors of the corporation by written consent without a
meeting, pursuant to Sec.78.315, Nevada Revised Statute. Approval by the
stockholders is not required.
3. Out of the Five Million (5,000,000) Shares of authorized preferred stock of
the Corporation One Million Eight Hundred Thousand (1,800,000) Shares shall be
classified as Class C Voting, Convertible Preferred Stock, each share of which
shall be entitled to fifty-six votes on all matters submitted to the holders of
the common stock for approval, voting together with the common stock as a single
class and not separately, shall be automatically converted in the aggregate into
the greater of Eighteen Million (18,000,000) or Ninety Percent (90%) of the
shares of common stock of the Corporation issued and outstanding immediately
following a reverse split to two million shares from one hundred million shares
of common stock immediately issued and outstanding immediately prior to the
conversion of the preferred stock, shall be entitled to receive dividends only
when and as declared on, and not in preference to, the common stock and then in
an amount determined as if the preferred stock had been then converted into
common stock and shall be entitled to participate in any distribution of the
Corporation's assets upon winding up of its affairs in pari passu with the
common stock; provided, that this preferred stock shall automatically cancel and
be of no force and effect in the event the Stock Exchange Agreement between the
Corporation and The Chirico Group, Inc. and its controlling stockholder dated
July 28, 2004 pursuant to which the preferred stock is to be issued does not
close in accordance with the terms of said Agreement.
IN WITNESS WHEREOF, the undersigned, President of Vitallabs, Inc., has executed
the within Certificate of Designation this 18th day of August, 2004 and caused
said Articles to be filed in the office of the Secretary of State for the State
of Nevada, effective upon the filing thereof.
(CORPORATE SEAL) Vitallabs, Inc.
ATTEST:
By: /s/ Anthony Chirico
Anthony Chirico, President
--------------------------------------------------------------------------------
Dates Referenced Herein and Documents Incorporated By Reference
Referenced-On Page
This 8-K Filing Date First Last Other Filings
3/1/99 4
12/31/03 1 7
6/29/04 3
7/28/04 24
For The Period Ended 8/18/04 1 24 3
8/23/04 12
Filed On / Filed As Of 9/9/04
3/18/05 12
Top List All Filings
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