ACQUISITION AGREEMENT
AGREEMENT, dated as of 1st day of December, 1996 but effective as the close
of business on December 1, 1996, by and between INFRASTRUCTURE INTERNATIONAL,
INC., a Nevada corporation (hereinafter called "III"), and the shareholders of
XXXXX XXX HIGHWAY PROJECT COMPANY LIMITED (hereinafter called "Shareholders").
RECITALS
WHEREAS, the Shareholders own or control in their respective capacities the
right to sell, transfer and exchange all of the issued and outstanding shares of
the capital stock of XXXXX XXX HIGHWAY PROJECT COMPANY LIMITED (hereinafter
referred to as "G H Highway Group") incorporated as a British Virgin Islands
Corporation and its shareholdings in a subsidiary in the People's Republic of
China (hereinafter collectively called the "G H Highway Group");
WHEREAS, III wishes to acquire all of the issued and outstanding capital
stock of the G H Highway in exchange for 8,430,000 shares of Common Stock, par
value $0.001 per share of III (hereinafter referred to as the "III Common
Stock"), representing approximately 87% of the issued and outstanding shares of
III following the exchange, and 100,000 shares of Class B Preferred Stock with
superior voting right always equivalent to 30% of total vote (hereinafter called
"Class B Preferred Stock") on all corporate matters of III, and the infusion
into G H Highway Group of cash of US$3,000,000 (Three Million United States
Dollars);
WHEREAS, the Shareholders wish to exchange their shares in the G H Highway
Group for shares of the III Common Stock and Class B Preferred Stock and the
infusion into G H Highway Group of cash in the amount of US$3,000,000
(hereinafter called "Consideration").
NOW THEREFORE, in consideration of the premises herein contained and the
mutual covenants hereinafter set forth, the parties hereto covenant and agree as
follows:
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1. EXCHANGE OF SECURITIES. Subject to the terms and conditions hereinafter set
forth, at the time of closing referred to in Section 6 hereof (hereinafter
called the "Closing Date"), III will issue and deliver, to the
Shareholders, 8,430,000 shares of III Common Stock and 100,000 shares of
Class B Preferred Stock in exchange for which the Shareholders will
deliver, or cause to be delivered to III, all of the issued and outstanding
capital stock of the G H Highway Group. Immediately following this
exchange, the Shareholders will own approximately 87% of the resulting
issued and outstanding Common Stock of III. As additional consideration,
III will issue to the Shareholders 100,000 shares of Class B Preferred
Stock and infuse into the G H Highway Group as a capital contribution the
sum of US$3,000,000. The Class B Preferred Stock has a voting right always
equivalent to 30% of the total vote on all corporate matters of III.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. The Shareholders
represent and warrant to III, all of which representations and warranties
shall be true as of the Closing Date, and shall survive the Closing Date
for a period of two years therefrom, except as to the representations and
warranties set forth in subsection (g) of this paragraph which shall
survive for a period of three years from the Closing Date, and those set
forth in subsection (h) of this paragraph which shall survive for either a
period of twelve months from the Closing Date, or from the date when the
accounts receivable become due and payable, whichever is later, that:
a. The G H Highway Group and each of its subsidiaries are corporations
duly organized, validly existing, and in good standing under the laws
of the jurisdiction of their incorporation and each has the corporate
powers to own their property and carry on their businesses as and
where it is now being conducted. Certified copies of the Memorandum &
Articles of Association and the Bylaws for the G H Highway Group and
each of its subsidiaries are attached hereto as Exhibit 1. These
documents are true and correct copies of the Memorandum and Articles
of Association and Bylaws of each company and include all of the
amendments thereto to and including the Closing Date.
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b. The authorized share capital of the G H Highway Group is $50,000
consisting of one class and one series of shares divided into 50,000
shares of $1 par value each, of which two shares are presently issued
and outstanding.
c. The Shareholders have the full legal right and power to exchange their
shares of the capital stock of the G H Highway Group upon the terms of
this Agreement, and all such shares have been duly authorized, validly
issued and are free and clear of any and all liens or other
encumbrances.
d. The consolidated financial statements audited and opined to by Xxxxxx
Xxxxxxxx & Co., Certified Public Accountants, at and for the year
ended September 30, 1996, attached hereto as Exhibit 2, constitute
true and correct statements as of such date of the financial condition
of the G H Highway Group and of its assets, liabilities and income,
prepared in accordance with generally accepted accounting principles
of the United States consistently applied, and that from September 30,
1996, until the Closing Date, no dividends or distributions of
capital, surplus, or profits have been, or will be paid or declared by
any member of the G H Highway Group in redemption of its outstanding
shares other than in the ordinary course of business, and no
additional debt or equity securities have been issued by any member of
the G H Highway Group, nor have any agreements or commitments been
entered into for the issuance of any such securities.
e. Since September 30, 1996, no member of the G H Highway Group has
engaged in any transaction other than transactions in the normal
course of the operation of their business, except as specifically
authorized by III in writing.
f. No member of the G H Highway Group is involved in any pending or
threatened litigation which could materially adversely affect its
financial condition as shown on the balance sheet(s) as of September
30, 1996 (Exhibit 2 hereto), which has not been provided for on such
balance sheet(s), referred to in such balance sheet(s) or disclosed to
III in writing.
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g. Each member of the G H Highway Group has, and will have as of the
Closing Date, good and marketable title to all of its property and
assets as shown on Exhibit 2 hereto, free and clear of any and all
liens, encumbrances or restrictions, except as shown on Exhibit 2
hereto, and except for taxes and assessments due and payable after the
Closing Date and easements or minor restrictions with respect to its
real property which do not materially affect either the present value
or use of such real property.
h. The inventories, if any, of the G H Highway Group as reflected in
Exhibit 2, and as specifically set forth in separate schedules dated
as of September 30, 1996, and attached hereto as Exhibit 3, are valued
at the lower of cost or net realizable value.
i. The accounts receivable of the G H Highway Group reflected in Exhibit
2, and as specifically set forth in separate schedules attached hereto
at Exhibit 4, which are due and payable on or before the Closing Date
shall be valid and collectible pursuant to their terms, and can
reasonably be anticipated to be paid within twelve months after the
Closing Date, or after the date when the accounts receivable become
due and payable.
j. In connection with their acquisition of shares of III, each
Shareholder represents and warrants to III the following:
(i) Each Shareholder has such knowledge and experience in financial
and business matters so that the Shareholder is capable of
evaluating the merits and risks of an investment in III.
(ii) The III Common Stock is being acquired for the account of the
individual Shareholder for investment only, and not with a view
to, or for resale in connection with, any distribution of the III
Common Stock within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
(iii)Each Shareholder acknowledges and agrees that the shares of III
Common Stock have not been registered under the Securities Act,
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or the laws of any other jurisdiction according, under U.S. law,
the III Common Stock cannot be sold or transferred by the
Shareholder, unless the Common Stock is subsequently registered
under applicable law or an exemption from registration is
available. However, III is not required to register or assist in
the registration of any III Common Stock, or to make any
exemption from registration available. Each Shareholder further
acknowledges and agrees that the share certificates evidencing
the III Common Stock will bear a legend substantially in the
following terms:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE "REGISTERED
SECURITIES" WITHIN THE MEANING OF THE SECURITIES ACT OF 1933. AS
AMENDED, AND RULE 144 PROMULGATED THEREUNDER. THE SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 AS
AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT
THE SALE OR TRANSFER OF THE SECURITIES IS EXEMPT FROM
REGISTRATION UNDER SAID ACT.
3. REPRESENTATIONS AND WARRANTIES OF III. III through its duly authorized
representative represents and warrants to the Shareholders, all of which
representations and warranties shall be true at the Closing Date, and shall
survive the Closing Date for a period of three years therefrom, that:
a. III is a corporation duly organized and validly existing and in good
standing under the laws of the State of Nevada and has the corporate
power to own its properties and carry on its business as it is now
being conducted, has authorized capital stock consisting of 50,000,000
shares consisting of 25,000,000 common shares $0.001 par value per
share, of which 1,250,000 shares are presently issued and outstanding,
and 25,000,000 share of preferred stock, $0.001 par value per share,
of which 3,000 shares are presently issued and outstanding. No other
debt or equity securities of III are issued or outstanding as of the
date hereof, and there does not now exist nor will there exist at the
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Closing Date any agreement or commitment to issue any such securities.
True and correct copies of the Articles of Incorporation and Bylaws of
III, as amended through the date hereof, are attached hereto as
Exhibit 5, and no amendment shall occur through the Closing Date
except as provided for by this agreement.
b. III has the corporate power to execute and perform this Agreement and
to deliver the shares required to be delivered to the Shareholders
hereunder.
c. The execution and delivery of this Agreement and the issuance of the
shares required hereunder, will have been duly authorized by all
necessary corporate action, and neither the execution nor the delivery
of this Agreement, nor the issuance of the shares nor the performance,
observance, or compliance with the terms and provisions of this
Agreement, will violate any provision of law, any order of any court
or other governmental agency, the Certificate of Incorporation or
Bylaws of III nor any indenture, agreement or other instrument to
which III is a party, or by which III is bound, or by which any of its
property is bound.
d. The shares of III Common Stock deliverable hereunder will, upon
delivery in accordance with the terms hereof, be duly authorized,
validly issued, fully paid and nonassessable, and will be free and
clear of any lien, claim or other encumbrance.
e. The financial statements audited by Xxxxxxx, XxXxxxxxxx & Associates,
Ltd., Certified Public Accountants, at and for the year ended December
31, 1995 (The "III Financial Statements"), attached hereto as Exhibit
6, constitute true and correct statements as of such date of the
financial condition of III and of its assets, liabilities and income,
prepared in accordance with generally accepted accounting principals
of the United States consistently applied, and that from December 31,
1995, until the Closing Date, no dividends or distributions of capital
, surplus, or profits will be paid or declared by III in redemption of
its outstanding shares or otherwise.
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f. Since December 31, 1995, III has not engaged in; and will not engage
in, any transaction, other than transactions in the normal course of
the operations of its business, except as specifically authorized by
the Shareholders in writing.
g. III is not involved in any pending or threatened litigation which
would materially adversely affect its financial condition as shown by
the balance sheet of December 31, 1995 (Exhibit 6 hereto), which has
not been provided for on such balance sheet of referred to in such
balance sheet or described on Exhibit 7 attached hereto.
h. No representations, warranties or covenants of III in this Agreement
or any certificate or other document furnished or to be furnished by
III pursuant to this Agreement, contain, or will contain, a material
misstatement of fact, or omit, or will omit, a material fact necessary
to make the statements contained herein, or therein, not misleading.
None of the officers or directors of III has knowledge of any act or
matter, which may have a material adverse effect upon III or the
securities of III.
i. As of the date hereof, the shares of outstanding common stock of III
are, and as of the Closing Date, such shares will be, registered under
Section 13 or 15 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Copies of all reports (the "Reports") filed by
III pursuant to Section 13 or 15 of the Exchange Act and the rules and
regulations promulgated thereunder. The Reports (i) do not contain any
untrue statement of a material fact, and (ii) do not omit to state any
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, misleading.
j. Except as previously described to the Shareholders in writing, III has
no material liabilities of any nature except:
(i) Liabilities reflected or reserved against in the III Financial
Statements attached hereto; and
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(ii) Liabilities incurred by III subsequent to the date of the latest
statement of financial condition submitted as part of the III
Financial Statements in the ordinary course of business and
consistent with past practice and disclosed in writing to the
Shareholders. As used in this Section, "material" means amounts
of $5,000 or more.
k. In connection with its acquisition of the G H Highway Group, III
hereby represents and warrants to the Shareholders the following:
(i) III has such knowledge and experience in financial and business
matters that III is capable of evaluating the merits and risks of
an investment in the G H Highway Group.
(ii) The shares of the G H Highway Group are being acquired for the
account of III for investment and not with a view to, or for,
resale in connection with, any distribution of such shares within
the meaning of the Securities Act.
(iii)III acknowledges and agrees that the shares of the G H Highway
Group are not registered under the Securities Act, or the laws of
any other jurisdiction. The shares of the G H Highway Group
cannot be sold or transferred by III unless they are subsequently
registered under applicable law or an exemption from registration
is available. The Shareholders are not required to register or
assist in the registration of the shares of the G H Highway Group
or to make any exemption from registration available. III further
acknowledges and agrees that the share certificates evidencing
the shares of the G H Highway Group will bear a legend
substantially similar to the legend set forth in Section
2(j)(iii) above.
(iv) The Shareholders shall have received the representation and
guarantee made personally by all members of Board of Directors of
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III that III has no loss and no liabilities of any kind prior to
or at the Closing Date.
l. Except as previously disclosed to the Shareholders in writing, there
has not been with respect to III since December 31, 1995, nor shall
there be with respect to III through the Closing Date:
(i) Any event, condition or state of facts, which individually or in
the aggregate, has resulted in any known adverse material change
in condition (financial or otherwise), in the assets,
liabilities, prospects or business of III taken as a whole;
(ii) Any declaration, set aside or payment, directly or indirectly, or
a distribution of assets, in the nature of a dividend or a
partial liquidation, pro rata or otherwise;
(iii)Any damage, destruction, loss or other casualty, whether or not
covered by insurance, or any strike, work stoppage, slowdown, or
other labor trouble materially adversely affecting the business
or properties of III considered as a whole.
(iv) Any material change in the method of recordkeeping employed by
III.
(v) Any issuance or sale of any capital stock, bond, debentures,
notes or other securities;
(vi) Any discharge or satisfaction of any lien or encumbrance or the
payment of any obligation or liability, accrued, absolute or
contingent, by such entity in excess of $5,000 in the aggregate
other than liabilities shown in the latest III Financial
Statements and liabilities arising out of obligations incurred
since December 31, 1995, in the ordinary course of business and
disclosed in writing to the Shareholders prior to the execution
of this Agreement;
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(vii)Any amendment or termination of receipt of notice of any
proposed amendment or termination of any material contract,
franchise, agreement, plan, lease, license or permit to which III
is party or by which it may be bound which materially affects or
will affect the business of III as presently conducted;
(viii)Any mortgage, pledge or subjection of any lien, charge, option
or other encumbrance upon any of the property or assets, tangible
or intangible, of III.
(ix) Any sale, assignment, transfer or agreement to sell, assign or
transfer any of the assets of III, or the making of any
commitment, or the incurring of any material liability, or the
cancellation or compromise or agreement to cancel or compromise
any of the debts or claims of such entity;
(x) Any sale, assignment or transfer, or agreement to sell, assign or
transfer, any trademark or trade name, or application therefore,
or computer software or hardware or any other proprietary
information; or
(xi) Any other material transaction or event other than in the
ordinary course of business.
m. Except as previously disclosed to the Shareholders in writing by III,
III is not party to any of the following:
(i) Collective bargaining agreements involving III and all other
agreements with employees of III as a group;
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(ii) Bonus, deferred compensation, pension, profit sharing, stock
option, stock purchase, incentive or retirement plans or other
employee benefit arrangement;
(iii)Employment agreements, contracts, or commitments, not terminable
at will without penalty, with or between III and a director,
officer or employee of III;
(iv) Agreements of guarantee or indemnification from III to any person
or entity;
(v) Agreements, contracts or commitments containing any covenant
limiting the right of III to engage in any line of business or
complete with any person or entity;
(vi) Agreements, contracts, or commitments to which III is a party or
by which it is bound evidencing or providing for loans to others;
(vii)Agreements, contracts, or commitments of III relating to
material future payments;
(viii) Agreements, contracts or commitments relating to a merger,
recapitalization, reorganization or the acquisition of assets or
capital stock of any business enterprise;
(ix) Government or government agency or authority approvals, consent,
orders, registrations, authorizations, licenses and permits, and
applications with respect thereto, which are material to the
business and operations of III as currently conducted; or
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(x) Agreements, contracts or commitments which may require consent by
any other person or entity in connection with the consummation of
the transactions contemplated hereby either to prevent a breach
or to continue the effectiveness hereof.
During the period commencing with the date hereof and ending with
the Closing Date, III will not enter into any such agreement,
contract or commitment, or be subject of any such approval,
consent, order, registration, authorization, license, permit or
application without the prior written consent of the
Shareholders.
n. Subject to the terms and conditions hereof, the Board of Directors of
III has duly approved this Agreement and its execution and the
carrying out of the transactions contemplated herein.
o. Prior to the Closing Date, III shall not negotiate, or directly or
indirectly solicit, or propose to enter into any negotiations which
have as their purpose the sale of the III Common Stock or all, or any
material portion of the assets of, or a tender offer, merger or other
acquisition proposal involving III or its assets, with any person
other than the Shareholders.
p. III hereby agrees, except as otherwise consented to or approved by the
Shareholders in writing, that prior to the Closing Date, III will (i)
operate its business substantially as now operated and only in its
ordinary course, and, to the extent consistent with such operation and
will use its best efforts to preserve its relationships with persons
having business dealings with it, (ii) maintain all of its properties
in customary repair, order the condition, reasonable wear and tear
excepted, (iii) maintain its books, accounts and records in the usual,
regular and ordinary manner, and in accordance with generally accepted
accounting principles of the United States applied on a consistent
basis, (iv) timely file all federal, state and local tax returns and
reports, including, without limitation, income, franchise, excise, ad
valorem, and other taxes with respect to its business and properties
and to pay all taxes or assessments, except for taxes being contested
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in good faith by appropriate proceedings, as they become due, (v)
maintain insurance upon its properties in accordance with sound
business practice, (vi) comply in all material respect with all laws,
regulations, rules and ordinances applicable to it and to the conduct
of its respective business, and (vii) comply with any contracts,
agreements, commitments, mortgages and similar instruments to which it
is a party.
4. CONDITIONS TO THE OBLIGATIONS OF III. The obligations of III hereunder are
subject to the following conditions:
a. III shall not have discovered any material error or misstatement in
any of the representations or warranties made by the Shareholders who
are parties hereto, and all of the terms and conditions of this
Agreement to be performed and complied with by the Shareholders, on or
prior to the Closing Date, shall have been performed and complied with
as of the Closing Date.
b. III shall have received the opinion of Messrs. Vanderkam & Xxxxxxx,
legal counsel for the G H Highway Group, to the effect that (i) each
member of the G H Highway Group is duly organized and validly existing
under the laws of the jurisdiction of its incorporation and has the
power and authority to own their properties and to carry on their
respective businesses wherever the same may be located and operated as
of the Closing Date, and (ii) that this Agreement has been duly
executed, and when delivered by the Shareholders is enforceable in
accordance with its terms, subject to general principles of equity,
and the valid exercise of police power. In rendering any such opinion,
Vanderkam & Xxxxxxx may rely on opinions of counsel licensed to
practice law in applicable jurisdictions where Vanderkam & Xxxxxxx is
not so licensed.
5. CONDITIONS TO THE OBLIGATIONS OF THE SHAREHOLDERS. The obligations of the
Shareholders hereunder are subject to the following conditions:
a. All representations and warranties of III made herein shall be true
and correct as of the date made and as of the Closing Date, and all
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the terms and conditions of this Agreement to be performed and
complied with by III on, or prior to the Closing Date, shall have been
performed and complied by the Closing Date.
b. There shall have been no substantial adverse change in the conditions,
whether financial, business or otherwise of III from December 31, 1995
to the Closing Date, and between materially adversely affected as the
result of any fire explosion, earthquake, flood, accident, strike,
lockout, taking over of any assets by any governmental authorities,
riot, activities of armed forces, or acts of God or of public enemies.
c. The Shareholders shall have received the opinion of legal counsel for
III, to the effect that (i) III is a corporation duly organized and
validly existing under the laws of the State of Nevada, and that it
has the power to own and operate its properties wherever the same may
be located as of the Closing Date; (ii) that the Agreement has been
duly executed and delivered by III and is enforceable against III in
accordance with its terms; (iii) that the shares to be delivered to
the Shareholders pursuant to the terms of this Agreement have been
validly issued, are fully paid and nonassessable, and (iv) that the
exchange of the shares herein contemplated does not require the
registration of the III Common Shares pursuant to any Federal law
dealing with the issuance, sale, transfer, and/or exchange of
corporate securities.
6. CLOSING DATE. The closing shall take place at 10:00 a.m. Central Standard
Time, on or before December 31, 1996, at such time and place as the parties
hereto shall mutually agree.
7. ACTIONS AT CLOSING. At closing, III and the Shareholders will each deliver,
or cause to be delivered to the other, the securities to be exchanged in
accordance with Section 1 of this Agreement, and each party shall pay any
and all taxes required to be paid in connection with the issuance and
delivery of the securities being assigned by such party. All share
certificates shall be in the name of the party to which the same are
deliverable except the Shareholders shares which shall be duly endorsed or
accompanied by a stock power executed in blank.
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In addition, the following shall occur at Closing:
a. III will deliver to the Shareholders:
(i) Duly certified copies of all corporate resolutions and other
corporate proceedings taken by III to authorize the execution,
delivery and performance of the Agreement; (ii) the opinion of
legal, counsel for III, as provided for in Section 5(c) hereof;
(iii) a Certificate executed by a principal officer of III and
each member of its Board of Directors and the holders of a
majority of its Common Stock, attesting that all of the
representations and warranties of III are true and correct as of
the Closing Date, and that all of the conditions to the
obligations of the Shareholders to be performed by III have been
performed as of the Closing Date; (iv) a Certificate of
Incumbency and Signatures of the officers of III dated as of the
date of this Agreement and again as of the Closing Date; (v) the
resignations of all directors and officers, auditors,
consultants, consults and employees of III, which resignations
shall contain an acknowledgement from each of them that they have
no claims against III for loss of office or otherwise; (vi) all
resignation certificates, statutory books, minute books and
corporate seals of III, all accounts, books and all documents and
papers in connection with the business affairs of III and all
documents of title relating to III assets; (vii) a Certificate of
Good Standing from the State of Nevada as of a recent date.
b. The Shareholders will deliver to III:
(i) The opinion of Vanderkam & Xxxxxxx, counsel for the G H Highway
Group, as provided for in Section 4(b) hereof; (ii) certificates
of corporate good standing from the jurisdiction of incorporation
as of a recent date for each member of the G H Highway Group;
(iii) a certificate of the Shareholders, signed by each
Shareholder, that each of the representations and warranties of
the Shareholders is true and correct as of the Closing Date and
that all of the conditions to the obligations of III to be
performed by the Shareholders have been performed as of the
Closing Date.
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c. III will deliver to the G H Highway Group the sum of US$3,000,000.
8. DISSOLUTION OF BOARD OF DIRECTORS. Upon completion of the acquisition, the
existing Board of Directors of III shall be dissolved and a new board shall
be constituted by the G H Highway Group.
9. CONDUCT AND BUSINESS BOARD OF DIRECTORS, ETC. Between the date hereof and
the Closing Date, the members of the G H Highway Group shall conduct their
business in the same manner which it has heretofore been conducted, and the
Shareholders will not permit any member of the G H Highway Group to (i)
enter into any contract, agreement or commitment other than in the ordinary
course of business, or (ii) declare or make any distribution of any kind to
the Shareholders of the G H Highway Group, without first obtaining the
written consent of III. Reciprocal requirements also apply to III.
10. ACCESS TO PROPERTIES, BOOKS AND RECORDS.
a. The Shareholders hereby grant to III and its duly authorized
representatives, during normal business hours between the date hereof
and the Closing Date, the right of full and complete access to the
properties of the G H Highway Group and full opportunity to examine
their books and records.
b. III hereby grants to the Shareholders and their duly authorized
representatives, during normal business hours between the date hereof
and the Closing Date, the right of full and complete access to the
properties of III and full opportunity to examine III's books and
records.
11. CONFIDENTIAL MATTERS.
a. III acknowledges and agrees that during, and as a result of any
discussions, furnishing of documents, III's own investigation, and
otherwise, III shall have access to certain confidential information
(as defined in subparagraph (b)). III hereby agrees for itself and for
each of its officers, directors, employees, agents, representatives
and affiliates:
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(i) to keep secret and confidential, and not to use directly or
indirectly for its own benefit or the benefit of others or to the
detriment of any of the Shareholders or of the G H Highway Group, each
and every item of the Confidential Information, and to use the
Confidential Information solely for the purpose of evaluating the
transactions described herein; (ii) to restrict access to the
Confidential Information to those of its officers, directors,
employees, agents, representatives, consultants, financial advisors
and potential investors who, in the performance of its or their
duties, reasonably require access to the Confidential Information;
(iii) to the best of its/their ability ensure that its officer,
directors, employees, agents, representatives, consultants, financial
advisors, potential investors and potential lenders who obtain access
to Confidential Information maintain the secrecy and confidentiality
thereof, and do not use, directly or indirectly, any such Confidential
Information for its or their own benefit, or the benefit of others, or
disclose any of the Confidential Information to any person or entity
not entitled to the same pursuant to the terms hereof without the
written consent of the Shareholders and G H Highway Group; and (iv) to
use the Confidential Information for no other purpose other than those
specifically authorized hereunder.
b. For purpose of this Agreement, "Confidential Information" shall
include, but not limited to, (i) all prior, subsequent or derivative
drafts hereof, and all information contained or described in the
Exhibits and Schedules attached hereto; (ii) the identity of the
Shareholders and the members of the G H Highway Group; (iii) the
nature, structure and terms of the transactions described herein and
contemplated hereby, and any arrangements related thereto; (iv) all
information pertaining or relating to, or arising out of or in
connection with, any of the foregoing, regardless of the source of
such information, projections, financial margins, or any other
information relating to the transactions described herein or to the
Shareholders or the G H Highway Group, including, but not limited to
customer lists, trade secrets, computer programs, products being
developed, marketed, and distributed by either the Shareholders or G H
Highway Group, engineering, technical and scientific data, tapes,
designs, skills, procedures, formulations, methods, drawings,
facilities, information and know-how, and other confidential
information regarding the Shareholders or the G H Highway Group.
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c. III further agrees that it shall deliver to the Shareholders and its
counsel for prior approval, all proposed press releases, reports or
forms to be filed with the Securities and Exchange Commission, and
other statements; disclosures or reports regarding the transactions or
matters described herein, contemplated hereby, or related hereto.
d. The provisions of this Section and the agreements by III as set forth
in this Section shall apply whether or not the Shareholders actually
acquire III, and accordingly, shall continue to apply after any
termination of the discussions regarding said acquisition for whatever
reason, and shall have no termination or expiration date.
e. III agrees that the disclosure of any of the Confidential Information
would cause immediate and irreparable harm to the Shareholders and to
the G H Highway Group for which damages would not constitute adequate
compensation, and that in the event that III has violated or is about
to violate any provision of this Agreement, any of the Shareholders,
or the G H Highway Group, may bring an action for and obtain
injunctive relief in any court having jurisdiction over III or its
assets without providing a bond or other security. Each Shareholders
and/or the G H Highway Group may recover their attorneys fees and
other costs incurred in the successfully enforcement of this
Agreement, or their rights hereunder, or in recovering damages for a
breach hereof.
12. BROKERAGE FEE. Each party hereto represents that no broker have been
employed in this transaction for which the other party could or will become
liable.
13. COSTS AND EXPENSES. Each party hereto shall pay its own costs and expenses
incident to the preparation of this Agreement and to the consummation of
the transactions contemplated herein.
14. MISCELLANEOUS.
a. This Agreement shall be controlled, construed and enforced in
accordance with the laws of the State of Nevada.
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b. This Agreement shall not be assignable by either party without the
prior written consent of the other.
c. All paragraph headings herein are inserted for convenience only.
d. This Agreement may be executed in multiple identical counterparts,
each of which shall be deemed an original, and which when taken
together, shall constitute one and the same instrument.
e. The Agreement sets forth the entire understanding between the parties
and there are no terms, conditions, representations or warranties
other than those contained herein, and no amendments hereto shall be
valid unless in writing and signed by all parties hereto.
f. This Agreement shall be binding upon and shall inure to the benefit of
the heirs, executors, administrators, successors and assigns of the
Shareholders and upon the successors and assigns of III.
g. All notices, requests, instructions, or other documents to be given
hereunder shall be in writing and sent by registered mail:
If to the Shareholder,
then: To the names and addresses set out on
the signature page under the heading
"Shareholders".
With copies to: Vanderkam & Xxxxxxx
Attn: Xxxx Xxxxxxxxx
000 Xxxxxxxxx, Xxx. 000
Xxxxxxx, Xxxxx 00000
If to III, then: INFRASTRUCTURE INTERNATIONAL, INC.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
and III has caused its corporate seal to be affixed hereto as of the date and
year first above written.
"III"
Attest: INFRASTRUCTURE
INTERNATIONAL,
INC.
By: /s/ illegible BY: /s/ illegible
--------------------------- ---------------------------
Secretary Xxxxx Xx President
"Shareholders"
/s/ illegible
-----------------------------
Name
Xxxx 0000, Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
/s/ illegible
-----------------------------
Name
Xxxx 0000, Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
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