ACQUISITION AGREEMENT OF
XXXXXX-XXXXXXXX CORP.
BY
INDUSTRIES, INC.
This agreement and plan of acquisition (the "Agreement") dated October 25.
1996. by and between Xxxxxx-Xxxxxxxx Corp., a New York corporation, the address
of which is 00 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxx Xxxx 1 1738, ("H/W"), and Xxxxx
Industries, Inc.. an Idaho corporation, the address of which is 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Xxxxx" or the "Acquiring Corporation")
[H/W and Xxxxx being herein sometimes called the "Parties" or "Constituent
Corporations"].
I. ACQUIRING CORPORATION; CERTIFICATE OF INCORPORATION AND BY-LAWS; BOARD OF
DIRECTORS; OFFICERS.
1.01 Acquiring Corporation.
The corporation which shall be the acquiring corporation is Xxxxx.
1.02 Certificate of Incorporation and By-laws.
The certificate of incorporation, as amended, and the by-laws of Xxxxx as
contained in Attachment "A" are in effect at the date of the Agreement are the
certificate of incorporation and the by-laws of the Acquiring Corporation until
they are amended.
1.03 Board of Directors. From the date of the Agreement until December 31,
1999, the Auxe- board of directors shall consist of three directors.
II. STATUS AND CONVERSION OF SECURITIES AND PROVISION FOR ADDITIONAL
CONSIDERATION 2.01 Shares of H/W
(a) H/W Common Stock. All the shares of the common stock of H/W (being 200
Shares) ("H/W Shares") shall be converted into and exchanged for
170,000 shares of common stock, of Xxxxx ("Xxxxx Shares" or "Xxxxx
Common Stock") to be issued to the sole shareholder of H/W, Xxxxxx X.
Xxxxxx ("Xxxxxx") or his designee(s). Xxxxxx and all designee(s) or
spouses of such designees(s) which receive Xxxxx Shares pursuant to
this paragraph agree that they will not enter any of the businesses in
which H/W is presently involved for a period of three years in the
"tri-state" area of New York, New Jersey and Connecticut.
(b) Surrender and Exchange, of H/W Shares. Subject to the provisions of
Paragraphs 2.01 (b) and (c), each holder of an outstanding certificate
or certificates (the "Old Certificates") therefore representing H/W
Shares ("H/W Shareholder"), upon surrender thereof shall receive in
exchange therefore a certificate or certificates (the "New
Certificates") representing the number of whole Xxxxx Shares into and
for which the H/W Shares therefore represented by such surrendered Old
Certificates have been converted. There are no dividends due to
holders of H/W Shares. H/W shall provide written instructions to Xxxxx
indicating the number of' Xxxxx Shares to be issued to Xxxxxx and/or
his designee(s). Shares not surrendered shall be marked as canceled on
the stock registry of the Company.
(c) "Current Market Price Per Share" of one share of Xxxxx Common Stock
shall be the average closing price of the shares of the NASD
Electronic Bulletin Board for the five trading days preceding the date
of the Agreement.
(d) "Value Per Share" of one share of Xxxxx Common Stock shall be one-half
the Current Market Price Per Share.
(e) No certificates or scrip for fractional Xxxxx Shares will be issued
and no payment will be made in respect thereof. Any fractional shares
which result shall be rounded up to the nearest whole Xxxxx Share. If
more than one certificate representing H/W Shares shall be surrendered
for the account of the same Shareholder. the number of full Xxxxx
Shares for which certificates shall be delivered to a Shareholder
shall be computed on the basis of the aggregate number of shares
represented by the certificates surrendered by thatShareholder.
(f) In the event. Xxxxxx, during the initial six months after the Xxxxx
Shares received pursuant to paragraph 201(b) become publicly tradable,
sells such stock in brokerage transactions at market for an average
price less than S 1.50 per share, Xxxxx will, at Xxxxxx'x option,
either transfer additional shares to Xxxxxx so that the average sales
price of all his Xxxxx Shares equals $1.50 per share or pay Xxxxxx the
difference between such average sales price and S 1.50 in cash.
It is understood by the Parties that the closing of the transactions
contemplated herein shall take place simultaneously with the execution of the
Agreement.
2.02 Additional Consideration
Xxxxx will assume and promptly pay the following liabilities as of the date
of the Agreement related to: commission sales personnel not to exceed $37,000
accounts payable not to exceed $55,000 (of which the payment of legal fees due
Xxxxxxxxxx, Xxxxx et al of $3,362.50 will be paid simultaneously with the
closing of the transactions contemplated by the Agreement); payroll not to
exceed $5,500; and landlord not to exceed $5,900.
In the event Xxxxx pays liabilities of H/W which equal these limits for any
group of creditors for accounts payable only, Xxxxxx will assume any additional
liabilities to that group. Xxxxx will document all payments by statements and
canceled checks.
III. COVENANTS
3.01 Covenants of Xxxxx Xxxxx covenants, that:
(a) Certificate of Incorporation. No amendment, change of state of
incorporation or other change has been made in the certificate of
incorporation of Xxxxx as attached to the Agreement.
(b) Securities. There are 8,079,929 Shares outstanding.
(c) Dividends and Purchases of Stock. No dividend, distribution or stock
split or recapitalization has been authorized, declared, paid or
effected by Xxxxx in respect of the outstanding Xxxxx Shares.
(d) Borrowing Money. Xxxxx has not borrowed, guaranteed the borrowing of
money. engaged in any transaction or entered into any material
agreement, except in the ordinary course of business.
(e) Access. Xxxxx has afforded the officers, directors, employees,
counsel, agents, investment bankers, accountants and other
representatives of H/W free and full access to the proper ties, books
and records of Xxxxx, has permitted them to make extracts from and
copies of such books and records and has furnished H/W with such
additional financial and operating data and other information as to
the financial condition, results or operations. business, properties.
assets, liabilities or future prospects of Xxxxx as H/W from time to
time has requested.
(f) Confidentiality. Xxxxx insures that, for a period of six months from
the date of the Agreement, all confidential information which Xxxxx or
any of its officers, directors, employees, counsel, agents, investment
barkers, or accountants may now possess or create or obtain relating
to the financial condition, results of operations, business
properties, assets. liabilities, or future prospects of H/W, any
affiliate or any customer or supplier of H/W shall not be published,
disclosed, or made accessible to any other person or entity at any
time in each case without the prior consent of Xxxxxx subject to
paragraphs 3.01 (g) and (h).
(g) Public Statements. Before Xxxxx releases any information concerning
the Agreement. or any of the other transactions contemplated by the
Agreement which is intended or may result in public dissemination
thereof, Xxxxx, for a period of six months from the date of the
Agreement, shall cooperate with Xxxxxx, shall furnish drafts of all
documents or proposed oral statements to Xxxxxx for comments, and
shall not release any such information without the written consent of
Xxxxxx. Nothing contained herein shall prevent Xxxxx from releasing
any information if required to do so by federal or state securities
law.
(h) Material for Registration Statement. Xxxxx represents that any future
filings to be made by it with the Securities and Exchange Commission
("SEC") will be prepared in accordance with the then existing
requirements of the Securities Act of 1933 (the "Securities Act"),
and/or the Securities Exchange Act of 1934 (the "Securities Exchange
Act") and the rules and regulations thereunder. Xxxxx shall furnish or
cause to be furnished, for inclusion in any registration statement
required to be filed with the SEC covering the Acquisition,
information about Xxxxx or Xxxxx'x security holders as may be required
and shall continue to furnish or cause to be furnished such
information for the purposes of supplementing any such proxy statement
or amending any registration statement.
(i) Indemnification. Xxxxx agrees to indemnify and hold harmless H/W and
its present officers, directors, employees, agents and counsel and
each person who controls H. W within the meaning of Section 15 of the
Securities Act of Section 20(a) or the Securities Exchange Act and if
the Acquisition is abandoned or terminated, except solely as a result
of a breach of the Agreement by H/W and/or Xxxxxx, against any and all
losses, liabilities, claims, damages and expenses whatsoever,
including attorneys' fees and expenses, as and when incurred arising
out of, based upon or in connection with any untrue statement or
alleged untrue statement of a material fact relating to and supplied
by Xxxxx contained in any post-effective registration statement, proxy
statement or any amendment or supplement thereto or any application or
other document or communication filed in any jurisdiction under the
"blue-sky," securities, or takeover laws thereof or filed with the
SEC. The foregoing agreement to indemnify shall be in addition to any
liability Xxxxx may otherwise have, including liabilities arising
under the Agreement.
3.02 Covenants of H/W From the Date of the Agreement
(a) Certificate of Incorporation and By-laws. No amendment has been made
in the certificate of incorporation or by-laws of H/W other than as
attached hereto as Attachment "B".
(b) Dividends and Purchases of Stock. No dividend, distribution or stock
split or recapitalization has been authorized, declared, paid or
effected by H/W in respect of the outstanding H/W Shares.
(c) Borrowing Money. H/W has not borrowed, guaranteed the borrowing of
money, engaged in any transaction or entered into any material
agreement, except in the ordinary course of business as disclosed in
the financial statements delivered to Xxxxx.
(d) Access. H/W has afforded the officers, directors, employees, counsel,
agents, investment bankers, accountants and other representatives of
Xxxxx and lenders, investors and prospective lenders and investors
free and full access to the properties, books and records of H/W and
has permitted them to make extracts from and copies of such books and
records, and will from time to time furnish Xxxxx with such additional
financial and operating data and other information as to the financial
condition, results or operations, business, properties, assets,
liabilities or future prospects of H/W as Xxxxx from time to time has
requested. H/W will cause the independent certified public accountants
of H/W to make available to Xxxxx and its independent certified public
accountants all work papers relating to H/W referred to herein.
(e) Conduct of Business. H/W has used reasonable efforts to preserve the
business operations of H/W intact, to keep available the services of
is present personnel, to preserve in full force and effect the
contracts, agreements, instruments, leases, licenses, arrangements and
understandings of H/W and to preserve the good will to others having
business relations with it.
(f) Advice of Changes. H/W has advised Xxxxx of any fact or occurrence or
any pending or threatened occurrence of which it obtains knowledge and
(i) which, would make the performance by any party of a covenant
contained in the Agreement impossible or make such performance
materially more difficult than in the absence of such fact or
occurrence or (ii) which would cause a condition to any party's
obligation under the Agreement not to be fully satisfied.
(g) Confidentialirv. H/W shall insure that all confidential information
which H/W or any of its officers, directors, employees, counsel,
agents, investment bankers, or accountants may now possess or may
hereafter create or obtain relating to the financial condition,
results of operations, business properties, assets, liabilities, or
future prospects of Xxxxx, or any affiliate shall not be published,
disclosed, or made accessible to any other person or entity at any
time or used in the business and for the benefit of H/W in each case
without the prior written consent of Xxxxx.
(h) Public Statements. Before the present officers or ,directors of H/W
release any information concerning the Agreement, or any of the other
transactions contemplated by the Agreement which is intended for or
may result in public dissemination thereof, they shall cooperate with
Xxxxx, shall furnish drafts of all documents or proposed oral
statements to Xxxxx for comments, and shall not release any such
information without the written consent of Xxxxx. Nothing contained
herein shall prevent H/W from releasing any information if required to
do so by law.
(i) Material for Registration Statement. In the event Xxxxx files a
registration statement with the SEC, Xxxxxx will provide such
information relating to H/W as may be required which he can obtain
without unreasonable effort or more than nominal cost.
(j) Indemnification. HAW agrees to indemnify Xxxxx and its officers,
directors, employees, agents and counsel against any and all losses,
liabilities, claims, damages and expenses whatsoever, including
counsel's fees and expenses as and when incurred arising out of, based
upon or in connection with representations which induced Xxxxx to
enter into the Agreement.
(k) Capitalization. H/W's capital structure consists of 1,000 shares of
common stock without par value of which 200 shares are issued and
outstanding. Each outstanding share is validly authorized, validly
issued, fully paid and, nonassessable, has not been issued and is not
owned or held in violation of any preemptive right of shareholders.
IV. REPRESENTATIONS AND WARRANTIES
4.01 Certain Representations and Warranties of Xxxxx
Xxxxx represents and warrants to H/W as follows:
(a) Organization and Qualification. Xxxxx is validly existing and in good
standing and has authority to own, lease, license and use its
properties and assets and to carry business in which it is now engaged
and will continue to be duly qualified.
(b) Capitalization. Xxxxx'x capital structure consists of 50,000,000
shares of common stock $.001 par value per share of which 8,092,929
shares are issued and outstanding. Each outstanding Xxxxx Share is
validly authorized, validly issued, fully paid and, nonassessable, has
not been issued and is not owned or held in violation of any
preemptive right of shareholders.
(c) Financial Condition. Xxxxx has delivered to H/W true and correct
copies of its financial statements. The financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved and are in
accordance with the books and records of Xxxxx. Since the date of the
financial statements:
i. There has at no time been a material undisclosed adverse change
in the financial condition of Xxxxx. ii. Xxxxx has not declared,
paid or effected any dividend or liquidating or other
distribution in respect of its shares of common stock or any
direct or indirect redemption, purchase, or other acquisition of
any Xxxxx Shares. iii. The operations and business of Xxxxx have
been conducted in all respects only in the ordinary course. iv.
Xxxxx has not suffered an extraordinary loss not disclosed in its
financial statements (whether or not covered by insurance) or
waived any right of substantial value.
There is no fact known to Xxxxx which materially adversely affects or
in the future (as far as Xxxxx can foresee) may materially adversely
affect the financial condition, results of operations, business,
properties, assets, liabilities, or future prospects of Xxxxx.
(d) Tax and Other Liabilities. Xxxxx has no undisclosed liability of any
nature, accrued or contingent, including without limitation
liabilities for federal, state or local taxes and liabilities. (e)
Litigation and Claims. There is no undisclosed litigation,
arbitration, claim, governmental or other proceeding (formal or
informal) or investigation pending, threatened or in prospect (or any
basis therefor known to Xxxxx) with respect to Xxxxx or its business
or assets.
(f) Properties. Xxxxx has title to or has leased the real and personal
property as set forth in the financial statements.
(g) Patent,. Trademarks, Etc. Xxxxx'x ownership or patents. trademarks or
any other intellectual property is as listed on its financial
statements.
(h) Authoritv to Enter and Perform the Agreement. Xxxxx has all requisite
power and authority to execute, deliver and perform the Agreement. All
necessary corporate proceedings of Xxxxx have been duly taken to
authorize the execution, delivery and performance of the Agreement by
Xxxxx, other than approval of the holders of Xxxxx Shares. The
Agreement constitutes the legal, valid and binding obligation of Xxxxx
and is enforceable as to it in accordance with its terms and no
consent, authorization, approval, order, license, certificate of or
from, or declaration or filing with any federal, state, local or other
government authority or any court or other tribunal is required by
Xxxxx.
(i) Xxxxx warrants that in the event it files a registration statement
with the SEC, it will include on a "piggy-back" basis the Xxxxx Shares
issued to Xxxxxx and/or designee(s) pursuant to Paragraph 201 (a) of
the Agreement at no cost to Xxxxxx except underwriter's commissions,
if any.
4.02 Certain Representations and Warranties of H/VI/ H/W represents and warrants
to Xxxxx as follows:
(a) Organization and Qualification. H/W has no subsidiaries. H/W is a
corporation duly organized, validly existing and in good standing
under the laws of The State of New York with all requisite power and
authority and all necessary consents, authorization, approvals,
orders, licenses, certificates and permits of and from, and
declarations and filings with, all federal, state, local and other
governmental authorities to own, lease, license and use its properties
and assets and to carry on the business in which it is now engaged and
the business in which it contemplates engaging. H/W is duly qualified
to transact the business in which it is engaged and is in good
standing as a foreign corporation in every jurisdiction in which its
ownership, leasing, licensing, or use of property or assets or the
conduct of its business makes such qualification necessary.
(b) Capitalization. Each of the outstanding H/W Shares is validly
authorized, validly issued, fully paid and, nonassessable, has not
been issued and is not owned or held in violation of any preemptive
right of shareholders. The names of stockholders and the number of
shares held by each are listed on Attachment "C."
(c) Financial Condition. H/W has delivered to Xxxxx true and correct
copies of its unaudited financial statements for the years ended
December 31, 1994 and 1995 and for the eight months ended August 31,
1996 and a list of all receivables and payables as of August 31, 1996
and a schedule of inventory as of that date. Since the date of the
financial statements:
i. There has at no time been a material adverse change in the
financial condition of H/W.
ii. H/W has not authorized. declared, paid or effected any dividend
or liquidating or other distribution in respect of its shares of
common stock or any direct or indirect redemption, purchase, or
other acquisition of any H/W shares of common stock. All accrued
but unpaid dividends have been waived by the H/W shareholders
entitled to receive such dividends in connection with the
Agreement. iii. H/W has not suffered an extraordinary loss
(whether or not covered by insurance) or waived any right of
substantial value.
There is no fact known to H/W which materially adversely affects the
financial condition, results of operations, business, properties,
assets, liabilities, or future prospects of H/W.
(d) Tax and Other Liabilities. H/W has no undisclosed liability of any
nature, accrued or contingent, including without limitation
liabilities for federal, state or local taxes and liabilities to
customers or suppliers, other than the following:
i. Liabilities for which full provision has been made on the
financial statements of H/W
ii. Other liabilities arising since the last H/W financial statement
in the ordinary course of business. Without limiting the
generality of the foregoing, the amounts set up as provision for
taxes on the last H/W financial statement are sufficient for all
accrued and unpaid taxes of H/W.
(e) Litigation and Claims. There is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal) or investigation
pending, threatened or in prospect which adversely impact H/W or its
business or assets.
(f) Properties. H/W has good and marketable title to all property and
assets used in its business or owned by it, as listed on its financial
statements. The real and other properties and assets (including
intangibles) leased or licensed by H/W constitute all such properties
and assets which are necessary to the business of H/W as presently
conducted.
(g) Contracts and Other Instruments. H/W has made available to Xxxxx
through the financial statements or otherwise in writing, all
contracts, agreements, leases, instruments, licenses, arrangements or
understandings with respect to H/W, listed on its financial statements
and otherwise. H/W is not a party nor is it bound by any contract,
agreement, instrument, lease, license, arrangement, or understanding
which may, in the future, have a material adverse effect on the
financial condition, results of operations, business, properties,
assets, liabilities or future prospects of H/W.
(h) Patents, Trademarks, Etc. H/W's ownership of patents, trademarks or
any other intellectual property (if any) is listed on its financial
statements.
(i) Authority to Enter into and Perform the Agreement. H/W has all
requisite power and authority to execute, deliver and perform the
Agreement. All necessary corporate proceedings of H/W have been duly
taken to authorize the execution, delivery and performance of the
Agreement by H/W, other than approval of the holders of H/W Common
Stock. The Agreement constitutes the legal, valid and binding
obligation of H/W and is enforceable as to it in accordance with its
terms and no consent, authorization, approval, order, license,
certificate or permit of or from, or declaration or filing with any
federal, state, local or other government authority or any court or
other tribunal is required by H/W.
V. ABANDONMENT AND TERMINATION
5.01 Right of H/W to Abandon.
H/W's Board of Directors shall have the right to abandon or terminate the
Acquisition if any of the following shall not be true.
(a) Accuracy of Representations and Compliance with Conditions. All
representations and warranties of Xxxxx contained in the Agreement
shall be accurate regardless of knowledge or lack thereof on the part
of Xxxxx or changes beyond its control; Xxxxx shall have performed and
complied with all covenants and agreements and satisfied all
conditions required to be performed and complied with by it by the
Agreement; and H/W shall have received a certificate executed by the
chief executive officer and the chief financial officer of Xxxxx dated
this date to that effect,
(b) Opinion of Xxxxx'x Counsel. H/W shall have received a letter of
Xxxxx'x Counsel, in form and substance satisfactory to H/W and its
counsel, to the effect that:
x. Xxxxx is an Idaho corporation validly existing and in good
standing with all requisite corporate power and authority to own,
lease, license and use its properties and assets and to carry on
the business in which it is now engaged;
ii. Xxxxx is and will be duly qualified to transact the business in
which it is engaged and is not required to register to do
business in any other jurisdiction;
iii. The authorized and outstanding capital stock of Xxxxx is as set
forth in the Agreement and all the outstanding shares of the
capital stock of Xxxxx are validly authorized, validly issued,
fully paid and nonassessable;
iv. All necessary corporate proceedings of Xxxxx have been duly taken
to authorize the execution, delivery and performance of the
Agreement by Xxxxx;
x. Xxxxx has all requisite corporate power and authority to execute,
deliver and perform the Agreement and the Agreement has been duly
authorized, executed and delivered by Xxxxx, constitutes the
legal, valid and binding obligation of Xxxxx, and (subject to
applicable bankruptcy, insolvency and other laws affect- ing the
enforceability of creditors' rights generally) is enforceable as
to Xxxxx in accordance with its terms;
vi. The execution, delivery and performance of the Agreement by Xxxxx
will not violate or result in a breach of any term of Xxxxx'x
certificate of incorporation or of its by-laws or violate, result
in a breach of, conflict with, or (with or without the giving of
notice or the passage of time or both) entitle any party to
terminate or call a default under, entitle any party to rights or
privileges that did not exist immediately before the Agreement
was executed under, or create any obligation on the part of Xxxxx
under the terms of any agreement that did not exist immediately
before the Agreement was executed;
vii. After reasonable investigation, Counsel has no actual knowledge
of any consent, authorization, approval, order, license,
certificate or permit of or from or declaration or filing with
any federal, state, local or other governmental authority or any
court or other tribunal which is required of Xxxxx for the
execution, delivery or performance of the Agreement by Xxxxx.
viii. After reasonable investigation, Counsel has no actual knowledge
of any litigation, arbitration, government or other proceeding
(formal or informal over and above the disclosure contained in
the financial statements), or investigation pending or threatened
with respect to Xxxxx or any of its businesses, properties or
assets than can reasonably be expected to result in any
materially adverse change in the financial condition-, results of
operations, business, properties, assets, liabilities or future
prospects of Xxxxx or seeks to prohibit or otherwise challenge
the Agreement or the consummation of the Acquisition or any of
the other transactions contemplated hereby or to obtain
substantial damages with . respect thereto, except as disclosed
in the Agreement.
5.02 Right of Xxxxx to Abandon.
Xxxxx'x Board of Directors shall have the right to abandon or terminate the
Acquisition if any of the following shall not be true.
(a) Accuracy of Representations and Compliance with Conditions. All
representations and warranties of H/W contained in the Agreement shall
be accurate when made and H/W shall have performed and complied with
all covenants and agreements and satisfied all conditions required to
be performed and complied with by it by the Agreement; and Xxxxx shall
have received a certificate executed by the chief executive officer
and the chief financial officer of H/W dated the date of the Agreement
to that effect.
(b) Certificate of the President of H/X. Xxxxx shall receive a certificate
of the Chairman of the Board and Sole Stockholder of H/W in' form and
substance satisfactory to Xxxxx and its counsel, to the effect that:
i. H/W is a corporation validly existing and in good standing under
the laws of the State of New York with all requisite corporate
power and authority to own, lease, license and use its properties
and assets and to carry on the business in which it is now
engaged.
ii. H/W is qualified to transact the business in which it is engaged
and is registered as a foreign corporation in all jurisdictions
in which it does business.
iii. The authorized and outstanding capital stock of H/W is as set
forth in the Agreement and all the outstanding shares of the
capital stock of H/W are validly authorized, validly issued,
fully paid and nonassessable;
iv. All necessary corporate proceedings of H/W have been duly taken
to authorize the execution, delivery and performance of the
Agreement by H/W;
v. H/W has all requisite corporate power and authority to execute,
deliver and perform the Agreement and the Agreement has been duly
authorized, executed and delivered by H/W, constitutes the legal,
valid and binding obligation of H/W, and (subject to applicable
bankruptcy, insolvency and other laws affecting the
enforceability of creditors' rights generally) is enforceable as
to H/W in accordance with its terms;
vi. The execution, delivery and performance of the Agreement by H/W
will not violate or result in a breach of any term of H/W's
certificate of incorporation or of its by-laws or violate, result
in a breach of, conflict with, or (with or without the giving of
notice or the passage of time or both) entitle any party to
terminate or call a default under, entitle any party to rights or
privileges that did not exist immediately before the Agreement
was executed under, or create any obligation on the part of H/W
under the terms of any agreement that did not exist immediately
before the Agreement was executed;
vii. He has no actual knowledge of any consent, authorization,
approval, order, license, certificate or permit of or from or
declaration or filing with any federal, state, local or other
governmental authority or any court or other tribunal which is
required of H/W for the execution, delivery or performance of the
Agreement by WW.
viii. He has no actual knowledge of any litigation, arbitration,
government or other proceeding (formal or informal), or
investigation pending or threatened with respect to H/W or any of
its businesses, properties or assets than can reasonably be
expected to result in any materially adverse change in the
financial condition, results of operations, business, properties,
assets, liabilities or future prospects of H/W or seeks to
prohibit or otherwise challenge the Agreement or the consummation
of the Acquisition or any of the other transactions contemplated
hereby or to obtain substantial damages with respect thereto,
except as disclosed in the Agreement.
VI. MISCELLANEOUS.
6.01 Further Actions
At any time and from time to time, each Party agrees, at its expense, to
take such actions and to execute and deliver such documents as may be reasonably
necessary to effectuate the purposes of the Agreement.
6.02 Availability of Equitable Remedies
Since a breach of the provisions of the Agreement could not adequately be
compensated by money damages, either Party shall be entitled, in addition to any
other right or remedy available to it, to an injunction restraining such breach
or threatened breach and to specific performance of any such provision of the
Agreement, and, in either case, no bond or other security shall be required in
connection therewith, and the Parties hereby consent to the issuance of such an
injunction and to the ordering of specific performance.
6.03 Modification
The Agreement sets forth the entire understanding of the Parties with
respect to the subject matter hereof. The Agreement may be amended by a written
instrument executed by H/W and Xxxxx with the approval of their respective
Boards of Directors. A change in the number of shares issued or the number and
exercise price of options due to a stock split or recapitalization of Xxxxx
ratably affecting all its stockholders and option holders will not be construed
as a modification of the Agreement.
6.04 Notices
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested or overnight delivery or courier service or delivered in
person or by facsimile against receipt to the Party to whom it is to be given at
the address of such Party set forth in the preamble to the Agreement (or to such
other address (or facsimile telephone number) as the party shall have furnished
in writing to the other Party. Any notice shall be addressed to the attention of
the Corporate Secretary.
