EXHIBIT A
STOCK EXCHANGE RESCISSION AND BREAK-UP AGREEMENT
THIS STOCK EXCHANGE RESCISSION AND BREAK-UP AGREEMENT IS MADE AND ENTERED
INTO THIS 6/th/ DAY OF NOVEMBER 1998 BY AND AMONG THE FOLLOWING:
1. WHITNEY AMERICAN CORPORATION, a Delaware corporation ("WHAM");
2. CARIBBEAN TRANSFER AGENCY, LTD., a St. Xxxxxxx, W.I. corporation ("CTA");
3. THE FIRST INTERNATIONAL MONETARY AGENCY OF LONDON, LTD, St. Xxxxxxx, W.I.
("FIMA");
4. THE CARSTAIRS GROUP, LTD, a St. Xxxxxxx, W.I. corporation ("Carstairs");
5. ATLANTIC PRODUCTIONS INTERNATIONAL, LTD., a St. Xxxxxxx, W.I. corporation
("Atlantic");
6. THE XXXXXXX-XXXXXXX FAMILY TRUST, a Bahamin Trust (Xxxxxxx-Xxxxxxx);
7. EXETER GROUP, INC., a Florida Corporation ("Exeter"); and
8. XXXXXXX X. XXXXXXXX, an individual residing in the State of Florida
("Xxxxxxxx").
THIS AGREEMENT IS MADE IN CONTEMPLATION OF THE FOLLOWING STATEMENTS OF FACT
AND EXPRESSIONS OF INTENT:
A. Under a Stock Exchange Agreement dated Xxxxx 0, 0000, XXXX acquired all
of the outstanding capital stock of the Exeter, consisting of 1,000 shares of
common stock (the "Exeter Shares") from Exeter's shareholders, in exchange for
the issuance by WHAM of 1,000,000 shares of WHAM common stock of the Exeter
shareholders as follows: Caribbean Transfer Agency, Ltd. 200,000 shares; The
First International Monetary Agency of London, Ltd. 250,000 shares; The
Carstairs Group, Ltd, 250,000 shares; Atlantic Productions International, Ltd,
200,000 shares; and The Xxxxxxx-Xxxxxxx Family Trust, 100,000 shares. (the
"Exeter Stock Exchange");
X. Xxxxxxxx was issued, on March 12, 1998, options to purchase 100,000
shares of WHAM's common stock under the WHAM 1997 Compensatory Stock Option
Plan;
C. Due to substantial differences arising within the management of WHAM
and Exeter concerning the accuracy and value of the Exeter acquisition the
parties mutually desire to rescind the exchanges of securities resulting from
the Exeter Stock Exchange and to settle accounts and obligations among the
parties;
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NOW THEREFORE, in consideration of the mutual promises, covenants, and
undertakings of the parties hereto and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. BREAK-UP AND RESCISSION OF EXETER STOCK EXCHANGE
In consideration of the premises and this Agreement, WHAM and CTA, FIMA,
Carstairs, Atlantic and Xxxxxxx-Xxxxxxx do hereby rescind in whole the exchange
of WHAM common stock for Exeter common stock as follows:
(a) Contemporaneously with the execution of this Agreement, WHAM has
delivered to CTA, FIMA, Carstairs, Atlantic, and Xxxxxxx-Xxxxxxx duly endorsed
share certificates for common stock of Exeter representing the Exeter Shares
previously transferred to WHAM under the Exeter Stock Exchange, receipt of which
is hereby acknowledged by CTA, FIMA, Carstairs, Atlantic and Xxxxxxx-Xxxxxxx;
and
(b) Contemporaneously with the execution of this Agreement, CTA has
delivered to WHAM duly endorsed certificates representing two hundred thousand
(200,000) shares of the common stock of WHAM previously issued to CTA under the
Exeter Stock Exchange, receipt of which is hereby acknowledged by WHAM; and
(c) Contemporaneously with the execution of this Agreement, FIMA has
delivered to WHAM duly endorsed certificates evidencing two hundred fifty
thousand (250,000) shares of the common stock of WHAM previously issued to FIMA
under the Exeter Stock Exchange, receipt of which is hereby acknowledged by
WHAM; and
(d) Contemporaneously with the execution of this Agreement, Carstairs has
delivered to WHAM duly endorsed certificates evidencing two hundred fifty
thousand (250,000) shares of the common stock of WHAM previously issued to
Carstairs under the Exeter Stock Exchange, receipt of which is hereby
acknowledged by WHAM; and
(e) Contemporaneously with the execution of this Agreement, Atlantic has
delivered to WHAM duly endorsed certificates evidencing two hundred thousand
(200,000) shares of the common stock of WHAM previously issued to Atlantic
under the Exeter Stock Exchange, receipt of which is hereby acknowledged by
WHAM; and
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(f) Contemporaneously with the execution of this Agreement, Xxxxxxx-
Xxxxxxx has delivered to WHAM duly endorsed certificates evidencing one
hundred thousand (100,000) shares of the common stock of WHAM previously issued
to Xxxxxxx-Xxxxxxx under the Exeter Stock Exchange, receipt of which is hereby
acknowledged by WHAM.
(g) Notwithstanding the break-up and rescission of the exchange under the
Exeter Stock Exchange, the parties hereto who were parties to the Exeter Stock
Exchange confirm, ratify, and re-adopt, mutatis mutandis, all of the relevant
and surviving representations, warranties, covenants, and indemnities and
other provisions of the said stock exchange agreement as specified therein as
if set forth at length herein.
2. RELINQUISHMENT OF STOCK OPTIONS
Xxxxxxxx, in consideration of this Agreement, releases, waives, foregoes,
and disclaims any and all rights to or interests in any options or underlying
shares of common stock of WHAM under the Compensatory Stock Option Agreement
issued March 12, 1998 under WHAM's 1997 Compensatory Stock Option Plan (the
"Plan") and shall return to WHAM, upon executing this Agreement, the option
certificate in Xxxxxxxx'x possession.
3. RETENTION OF ASSETS AND LIABILITIES INCLUDING CONTRACTS BY EXETER
It is understood by all parties that Exeter retains possession, ownership
and responsibility for any and all assets and liabilities held by Exeter at the
time of the merger and acquisition and in addition, all assets and liabilities
which Exeter may have accumulated from the time of the merger and acquisition to
the date of execution of this Agreement. It is also further understood that the
assets referred to above include any and all contracts held by Exeter at the
time of the merger and acquisition of Exeter by WHAM on March 6, 1998.
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4. REPRESENTATIONS AND WARRANTIES IN RESPECT OF BREAK-UP
(a) CTA, FIMA, Carstairs, Atlantic and Xxxxxxx-Xxxxxxx jointly and
severally represent and warrant that:
(i) Neither is insolvent and will not be insolvent after selling and
delivering the WHAM shares to WHAM and that they are receiving
consideration at least equal to the full and fair value of the Exeter
Shares being re-exchanged;
(ii) They have valid and marketable title to the WHAM shares being
delivered by them hereunder free and clear of any claims, liens,
trusts, encumbrances, rights, and interests of any person and that
they have the full right, power, and authority to enter into and
perform their respective obligations under this Agreement and that
this Agreement has been duly and validly authorized, executed, and
delivered on behalf of CTA, FIMA, Carstairs, Atlantic, and Xxxxxxx-
Xxxxxxx and that no third party approvals or consents of any kind are
necessary in connection with this Agreement;
(iii) They each have good and valid title to all of the WHAM shares being
re-exchanged, free and clear of all claims, liens, mortgages,
charges, security interests, encumbrances, and other restrictions or
limitations of any kind whatsoever, and that neither of them is a
party to nor bound by any other agreement, instrument, or
understanding restricting the re-exchange of the WHAM shares; and
(iv) The execution, delivery, and performance of and compliance with this
Agreement and the exchange of WHAM shares to be exchanged hereunder
will not result in any violation of any term or provision of any
mortgage, indenture, contract agreement, instrument, judgment,
decree, order, injunction, statute, rule, or regulation, or be in
conflict with or constitute a default under any such term or
provision applicable to CTA, FIMA, Carstairs, Atlantic, and
Xxxxxxx-Xxxxxxx
(b) WHAM represents and warrants that:
(i) It is not now insolvent and will not be insolvent after selling and
delivering the Exeter Shares to CTA, FIMA, Carstairs, Atlantic, and
Xxxxxxx-Xxxxxxx and that WHAM is receiving consideration at least
equal to the full and fair value of the WHAM Shares being re-
exchanged; and
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(ii) WHAM has good and marketable title to the Exeter Shares delivered by
WHAM hereunder free and clear of any claims, liens, trusts,
mortgages, encumbrances, rights and interests of any person and
WHAM has the full right, power, and authority to enter into and
perform its obligations under this Agreement and this Agreement has
been duly and validly authorized, executed, and delivered on behalf
of WHAM in accordance with all proper corporate procedures and no
third party approvals or consent of any kind are necessary in
connection with this Agreement; and
(iii) WHAM is not a party to nor bound by any other agreement, instrument,
or understanding restricting the re-exchange of the Exeter Shares.
5. ADDITIONAL COVENANTS AND UNDERTAKINGS OF THE PARTIES
The parties hereto agree to the faithful performance of the following
additional covenants and undertakings:
(a) Each party shall give prompt notice to all other parties of any notice
of default relating to any party received subsequent to date of this Agreement,
and of the assertion of any claim which, if held, or the occurrence of any
event, which would render inaccurate any representation or warranty of the
affected party;
(b) Each party will take all reasonable action within its or their
capability necessary to render accurate such party's representations and
warranties obtained in this Agreement, and each party will refrain from taking
any action that would render inaccurate after the date hereof any such
representations or warranties; and
(c) Each party will execute and deliver, or cause to be executed and
delivered, such additional assignments, endorsements, and other documents as any
other party may reasonably request for the purpose of carrying out this
Agreement;
(d) No party hereto shall cause there to be made any public announcement,
press release, or report concerning the transactions contemplated by this
Agreement; provided, however, that nothing herein shall be construed to limit or
inhibit the reporting of any such transaction to any governmental authority
having jurisdiction or to any exchange or board to which any party is required
to report or notify.
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6. FORM OF AGREEMENT
(a) The subject headings in this Agreement are included for convenience
only, and shall not affect the construction or interpretation of any of the
provisions hereof.
(b) This Agreement and all exhibits and documents incorporated herein by
reference constitutes the entire agreement between the parties pertaining to the
subject matter contained in it and supersedes all prior and contemporaneous
agreements, representations, and understandings of the parties, whether oral or
in writing. No supplement, modification, or amendment of this Agreement shall
be binding unless executed in writing by the parties against which asserted.
(c) In case any one or more of the provisions contained in this Agreement
should be invalid, illegal, or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
(d) This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7. PARTIES
(a) Nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any
persons other than the parties to it and their respective successors and
assigns, nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement, nor
shall any provision give any third persons any right of subrogation or action
over against any party to this Agreement.
(b) This Agreement shall be binding on, and shall inure to the benefit of,
the parties to it and their respective heirs, legal representatives, successors
and assigns; provided, however, that no party may assign any of his, her, or its
rights or obligations or duties under this Agreement without the express written
consent of the other party.
8. REMEDIES
(a) No right, power, or remedy herein conferred upon or reserved to any
party hereto is intended to be exclusive of any other right, power, or remedy,
and every right, power, and remedy pursuant to this Agreement, now or hereafter
existing at law or in equity or by statute or otherwise, shall be cumulative and
concurrent, to the
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extent permitted by law, and shall be in addition to every other right, power,
or remedy pursuant to this Agreement, now or hereafter existing at law or in
equity or by statute or otherwise. The exercise or beginning of the exercise by
any party hereto of any such right, power, or remedy shall not preclude the
simultaneous or later exercise of any right, power, or remedy.
(b) No waiver of any of the provisions of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar.
No waiver shall be binding unless specifically so titled, and executed in
writing by the party making the waiver. No failure or delay to insist upon the
strict performance of any term, condition, covenant, or agreement of this
Agreement, or to exercise any right, power, or remedy hereunder or consequent
upon a breach hereof, shall constitute a waiver of any such term, condition,
covenant, agreement, right, power, or remedy of any such breach, or preclude the
exercise of any such right, power, or remedy at any later time or times.
(c) The obligations under this Agreement are unique. If any party should
default in its obligations under this Agreement, the parties hereto acknowledge
that it would be impracticable to measure the resulting damages; accordingly,
the non-breaching party in addition to any other available rights or remedies,
may xxx for specific performance, and the other party waives the defense that a
remedy in damages will be adequate.
(d) The provisions providing for arbitration of disputes between the
parties to the Exeter Exchange Agreement, as contained therein, are hereby
rescinded and nullified in all respects.
9. SURVIVAL
All representations, warranties, covenants, and agreements of the parties
contained in this Agreement, or in any instrument, certificate, opinion, or
other writing provided for in it, shall survive any investigation made by either
party and shall survive the execution and delivery hereof.
10. NOTICES
All notices, request, instruction, or other document to be given hereunder
by a party shall be in writing and delivered personally or by facsimile
transmission, or by electronic mail, or sent by registered or certified mail,
postage prepaid, return receipt requested, addressed to the last known address
of any such party as contained in the files and records of WHAM.
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11. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia.
WHEREFORE, the premises considered, the parties herein have executed the
foregoing Agreement, intending to be so bound, on the day first above written.
WHITNEY AMERICAN CORPORATION ACCEPTED AND AGREED TO:
A Delaware Corporation
By: /s/
--------------------------------- ---------------------------------------
Xxxx X. Xxxxxxxxx, Chairman & CEO Date
Caribbean Transfer Agency, Ltd.
By: /s/
---------------------------------
The First London International Monetary Agency of London, Ltd.
By: /s/
---------------------------------
The Carstairs Group, Ltd.
By: /s/
---------------------------------
Atlantic Productions International, Ltd.
By: /s/
---------------------------------
The Xxxxxxx-Xxxxxxx Family Trust
By: /s/
---------------------------------
Exeter Group Inc.
By: /s/
---------------------------------
Xxxxxxx X. Xxxxxxxx
By: /s/
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