STOCK EXCHANGE AGREEMENT
This Agreement ("Agreement") is made and entered into on March 5, 1998,
by and among COASTLINE INTERNATIONAL, INC., a Delaware corporation, as the
acquired company ("COASTLINE"); WHITNEY AMERICAN CORPORATION, a Delaware
corporation, as the acquiring company (the "WHAM"); and those persons
executing this Agreement in their capacity as shareholders of COASTLINE (the
"Shareholders").
WHEREAS, WHAM wishes to acquire and the Shareholders wish to transfer all
the issued and outstanding stock of COASTLINE in a transaction intended to
qualify as a reorganization within the meaning of I.R.C. Section 368(a)(1)(B),
as amended.
NOW, THEREFORE, WHAM, COASTLINE and the Shareholders adopt this plan of
reorganization and agree as follows:
1. Certain Definitions. As used herein and in any exhibit or schedule
incorporated herein, or in any document, certificate or opinion required to be
delivered pursuant to this Agreement, the following terms shall have the
meanings ascribed below.
(a) "Closing Date" means the date at which Closing hereunder shall
occur, which date shall be March 6, 1998, or any other date which may be
mutually agreed upon by the parties hereto.
(b) "Closing" means the settlement and consummation of the
purchase transaction contemplated hereby to be held at 2:00 p.m. Eastern
Standard Time on the Closing Date at the offices of Xxxx X. Xxxxxxx, Xx., Esq.,
counsel for WHAM, 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, or at such
other place as may be mutually agreed upon by the parties hereto.
(c) "COASTLINE Shares" means One Hundred(100%) percent of the
issued and outstanding capital stock of COASTLINE to be delivered to WHAM at the
Closing.
2. Exchange of Stock
(a) Exchange. Subject to the terms and conditions herein set
forth, at the Closing on the Closing Date;
(i) The Shareholders agree to transfer to WHAM the number
of COASTLINE Shares, without par value, shown opposite their names in Exhibit
A, in exchange for an aggregate of One Million Seven Hundred Fifty Thousand
(1,750,000) shares of voting common stock of WHAM, $0.00001 par value per
share, (the "Exchange Shares"), to be issued at the Closing to the
Shareholders in the numbers shown opposite their names in Exhibit A.
(ii) The transfer of COASTLINE Shares by the Shareholders
shall be effected by the delivery to WHAM at the Closing of certificates
representing the transferred shares endorsed in blank.
(iii) At the Closing and from time to time thereafter the
Shareholders shall execute such additional instruments and take such other
action as WHAM may request in order more effectively to sell, transfer, and
assign the transferred stock to WHAM and to confirm WHAM's title thereto.
(b) Restricted Status of Exchange Shares. The Exchange Shares
have not been registered under the Securities Act of 1933, as amended ("Act"),
in reliance upon exemptions from registration provided by Section 4(2) of the
Act and Rule 506 under the Act and under the securities or blue sky laws of
applicable states or any rules or regulations promulgated thereunder, on the
grounds that the transactions contemplated in this Agreement do not involve any
public offering. The Exchange Shares are "restricted securities" as that term is
defined in Rule 144(a) of the General Rules and Regulations under the Act and
must be held indefinitely, unless they are subsequently registered under the Act
or an exemption from such registration requirements is available for their
resale. The prior written consent of WHAM will be necessary for any transfer of
any or all of the Exchange Shares, unless the shares have been duly registered
under the Act or the transfer is made in accordance with Rule
144 or other available exemption under the Act. Further, any and all
certificates which are issued representing Exchange Shares shall, unless and
until removed in accordance with law, bear a restrictive legend substantially
in the following form:
"The shares represented by this Certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"), and are "restricted
securities" as that term is defined in Rule 144 under the Act. These shares may
not be offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act, or pursuant to an exemption from
registration under the Act, the availability of which must be established to the
satisfaction of the Company's counsel."
(c) Officers and Directors of WHAM. At the Closing, the current
officers and directors of WHAM shall resign and the persons below shall be
elected as the directors and executive officers of WHAM:
Name Position
1. Xxxx X. Xxxxxxxxx Chairman of the Board, Chief
Executive Officer
Xxxxxx X. Xxxxxxxxx, Xx. Executive Vice President, Director
Xxxxxxxxxxx Xxxxxxx Executive Vice President, Chief
Operating Officer, Director
Xxxx X. Xxxxx Director
Xxxxx Xxxxxxxxxx Director
Xxxxxxx Xxxxxxxx Director
Xxxx Xxxxxxxx Assistant Secretary/Treasurer, Director
3. Representations and Warranties of COASTLINE and the Shareholders.
COASTLINE and the Shareholders make to WHAM the following representations and
warranties, in reliance upon which WHAM has entered into this Agreement.
(a) Each Shareholder represents and warrants that he, she or it is
not now insolvent and will not be insolvent after selling and delivering the
COASTLINE Shares to WHAM on the terms of this Agreement, and that he, she or it
is receiving new consideration at least equal to the full and fair value of the
COASTLINE Shares being sold.
(b) COASTLINE and the Shareholders understand and acknowledge that
(i) there is no active trading market in the common stock of WHAM, although
quoted name-only on the OTC Board, (ii) WHAM is a shell company with no cash or
other assets, no operations and no full-time or experienced management, (iii) no
person currently an officer, director or shareholder of or professional adviser
to WHAM has made any representation whatsoever to any Shareholder relating to
WHAM's stock price, operations, profitability or prospects following the
Closing, (iv) persons designated by COASTLINE and/or the Shareholders will
become the officers and directors of WHAM at the Closing, and no person now an
officer or director of WHAM will be such after the Closing or have any
responsibility or input as to operations after the Closing, the officers and
directors of WHAM solely responsible for its operations and success will be
persons designated by COASTLINE and the Shareholders, and (v) the Exchange
Shares are speculative and involve a high degree of risk.
(c) Each Shareholder acknowledges and agrees that he, she or it
have been furnished with substantially the same kind of information regarding
WHAM and its assets, financial condition and plan of operation as would be
contained in a registration statement and included prospectus prepared in
connection with a public offering of the Exchange Shares and has reviewed all
information concerning WHAM publicly available on the website maintained by the
Securities and Exchange Commission. Each Shareholder further represents that he,
she or it has had an opportunity to ask questions of and receive answers from
WHAM and its officers and directors regarding WHAM and its assets, financial
condition and plan of operation and the terms and conditions of the issuance of
the Exchange Shares.
(d) The Shareholder, alone or together with the Shareholder's
adviser(s), have such knowledge and experience in financial, tax and business
matters as to enable Shareholder to utilize the information made available by
WHAM, in connection with the Exchange and issuance of the Exchange Shares, to
evaluate the merits and risks of acquiring the Exchange Shares and to make an
informed investment decision with respect thereto.
(e) Each Shareholder agrees that he, she or it was not solicited
by WHAM by any form of general solicitation or general advertising, including
but not limited to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio, or made available over telephone lines by any information
service, or any seminar or meeting whose attendees had been invited by any means
of general solicitation or general advertising.
(f) Except as expressly set forth in this Agreement and any
Schedules, Exhibits or other attachments hereto, WHAM has not made any
representation or warranty to any Shareholder in connection with this Agreement,
and WHAM has made no communication to any Shareholder that constitutes tax or
investment advice.
(g) Authority. The Shareholders have valid and marketable title to
the COASTLINE Shares free and clear of any claims, liens, trusts, encumbrances,
rights or interests of any person. The Shareholders have the right, power, and
authority to enter into, and perform their respective obligations under this
Agreement. This Agreement has been and as of the Closing Date will be, duly and
validly authorized, executed and delivered on behalf of the Shareholders, have
all requisite power and authority to consummate the transactions contemplated
herein. This Agreement is the valid and binding obligation of the Shareholders.
No third-party approvals or consents of any kind are necessary in connection
with this Agreement.
(h) Organization and Good Standing. COASTLINE is duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full charter power to carry on its business as it is now being conducted
and to own and operate the properties now owned, operated or leased by it.
COASTLINE is qualified to do business as a foreign corporation in every state in
which the nature of the business carried on and properties owned or leased by
them presently requires them to be so qualified in any other jurisdiction.
(i) Capitalization. The authorized capitalization of COASTLINE
consists of One Thousand (1,000) shares of Common Stock, $0 par value per share.
As of the date hereof, COASTLINE has issued and outstanding 1,000 shares of such
Common Stock. All of such issued and outstanding shares have been duly and
validly issued, are fully paid and non-assessable and were issued and sold
pursuant to, and within limitations contained in, appropriate permits and
consents of each governmental authority from whom any permit or consent was
required.
(j) Title to COASTLINE Shares. The Shareholders have good and
valid title to all of the issued and outstanding common stock of COASTLINE, free
and clear of all claims, liens, mortgages, charges, security interests,
encumbrances and other restrictions or limitations of any kind whatsoever. The
Shareholders are not a party to, or bound by, any other agreement, instrument or
understanding restricting the transfer of such interests.
(k) Financial Statements. Attached hereto and incorporated herein
by this reference, is the unaudited consolidated Financial Statements
of COASTLINE for the year ended December 31, 1997, accompanied by the related
opinions of COASTLINE's official independent auditors as of such dates and for
such periods (the "Financial Statements"). Said Financial Statements (i) were
prepared in accordance with the books and records of COASTLINE; (ii) were
prepared in accordance with generally accepted accounting principles
consistently applied; and (iii) sets forth fairly COASTLINE's financial
condition and the results of its operations as of the relevant dates thereof and
for the periods covered thereby. Except as to the extent reflected or reserved
against in the Financial Statements, COASTLINE as of the date thereof had no
liability or obligation of any nature, whether accrued, absolute, contingent or
otherwise, including without limitation, tax liabilities due or to become due
and whether incurred in respect of or measured by the income of COASTLINE for
any period prior to such date, or arising out of any transaction entered into,
or any state of facts existing, prior hereto. Since the date of such Financial
Statements, absent written disclosure, no credit or charge has been made to any
surplus account of COASTLINE.
(l) Events Subsequent to December 31, 1997. Since December 31,
1997, absent a written disclosure delivered to WHAM, there has not been any:
(i) material adverse change in the financial condition,
liabilities, assets, business, or prospects of COASTLINE;
(ii) destruction, damage to, or loss of any asset of
COASTLINE that may substantially affect the financial condition, business, or
prospects of COASTLINE;
(iii) change in accounting methods or practices (including,
without limitation, any change in inventory accounting or in depreciation or
amortization policies or rates) by COASTLINE;
(iv) revaluation by COASTLINE of any of its assets;
(v) declaration, setting aside, or payment of a dividend or
other dividend or other distribution in respect to the capital stock of
COASTLINE, or any direct or indirect redemption, purchase, or other acquisition
by COASTLINE of any of its shares of capital stock;
(vi) any other transaction by COASTLINE except in the
ordinary course of business;
(vii) direct or indirect increase in the salary or other
compensation payable or to become payable by COASTLINE to any of its officers,
directors or employees, or the declaration, payment or commitment or
obligations of any kind for the payment by COASTLINE of a bonus or other
additional salary or compensation to any such person;
(viii) sale or transfer of any single asset of COASTLINE
having a value in excess of $1,000 ;
(ix) amendment or termination of any contract, agreement, or
license to which COASTLINE is a party except in the ordinary course of business;
(x) loan by COASTLINE to any person or entity, or guaranty
by COASTLINE of any loan;
(xi) mortgage, pledge, or other encumbrance of any asset of
COASTLINE;
(xii) waiver or release of any right or claim of COASTLINE;
(xiii) issuance or sale by COASTLINE of any shares of
COASTLINE's capital stock;
(xiv) bid submitted or sales contract entered into or any
other contract or agreement entered into involving more than $1,000 in each
case, except in the ordinary course of business;
(xv) obligation or debt incurred in excess of $1,000.
(m) Liabilities. COASTLINE has no known debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
whether due or to become due, that is not fully provided or reserved for in the
Financial Statements, including the notes thereto, except for those (1) that may
have been incurred after the date of the Financial Statements in the ordinary
course of business, or (2) that are not required by generally accepted
accounting principles to be included in the Financial Statements. All debts,
liabilities and obligations incurred after the date of the Financial Statements
were incurred in the ordinary course of business and not in violation of any
provision of this Agreement, are usual and normal in amount both individually
and in the aggregate.
(n) Taxes. Within the time and in the manner prescribed by law,
COASTLINE has filed all Federal, state and local tax returns required by law and
have paid all taxes, assessments, and penalties due and payable. The
Shareholders shall cause COASTLINE (i) to prepare and file all Federal, state
and local income tax returns for COASTLINE required to be filed through the
Closing Date covering the most recent taxable period; (ii) to pay all taxes,
penalties and assessments related to such returns, and upon filing thereof shall
promptly supply copies of such returns to WHAM. The provision for taxes
reflected in the Financial Statements are adequate for any and all federal,
state, county, and local taxes for the period ending on the date of such
Financial Statements and for all prior periods, whether or not disputed,
including without limitation any and all taxes that may be assessed by the
Internal Revenue Service as a result of an audit of the Company's tax returns.
There are no present disputes as to taxes of any nature payable by COASTLINE or
with respect to the COASTLINE Shares. On or before the Closing Date, COASTLINE
shall have furnished to WHAM, in form satisfactory to it, true and accurate
copies of all Federal, state and local tax returns, filings, waivers, elections
and deficiency notices for each of the past fiscal year of COASTLINE and a true
and complete copy of the unaudited consolidated and consolidating balance sheets
of COASTLINE as of January 31, 1998 ("Current Balance Sheet").
(o) Title to Properties and Assets. COASTLINE has good and
marketable title to its properties and assets, including the properties and
assets reflected in the Current Balance Sheet referred to above (except as since
disposed of in the ordinary course of business) subject to no liens, mortgages,
encumbrances or charges which are not reflected in the Current Balance Sheet or
which, either in any case or in the aggregate, are substantial in amount or
which materially detract from the value of the property subject thereto or which
materially impair the operation of COASTLINE, or which have not arisen otherwise
than in the ordinary course of business. No personal property needed by
COASTLINE for the conduct of its business is held under any lease, security
agreement, conditional sales contract, or other title retention or security
arrangement, or is located other than in the possession and under the control of
COASTLINE. The tangible personal property reflected in those books and records
constitutes all such tangible personal property necessary for the conduct by
COASTLINE of its business as now conducted.
(p) Proprietary Rights. COASTLINE owns or possesses adequate
licenses or other rights to use all patents, patent applications, trademarks,
trademark applications, trade secrets, service marks, trade names, copyrights,
inventions, drawings, designs, customer lists, proprietary know-how or
information, or other rights with respect thereto (collectively referred to as
"Proprietary Rights"), used by it and the same are sufficient to conduct such
business as it has been and is now being conducted. The operations of COASTLINE
neither conflict with nor infringe, and no one has asserted to COASTLINE that
such operations conflict with or infringe, any intangible property rights owned,
possessed or used by any third party which are of the same kind as the
Proprietary Rights. There are no claims, disputes, actions, proceedings, suits
or appeals pending against COASTLINE with respect to any Proprietary Rights and
none has been threatened against COASTLINE. To the
best knowledge of COASTLINE (after reasonable investigation), there are no facts
which would result in any claim which would have an adverse effect on the
condition (financial or otherwise), business, net worth, assets, properties or
operations of COASTLINE based on an assertion that COASTLINE does not have the
unrestricted right to use, free of any rights or claims of others, all
Proprietary Rights.
(q) Insurance. Prior to the Closing Date, COASTLINE shall have
delivered, in form satisfactory to WHAM pursuant to this subparagraph, a
certificate or certificates of all insurance coverage of COASTLINE. Such
certificates evidence policies of fire, liability and other forms of casualty
insurance and workmen's compensation insurance held by COASTLINE. Such
policies will be maintained in force and in effect by COASTLINE in present
amounts up to and including the Closing Date. COASTLINE is not in material
default under any of such policies.
(r) Contracts. The Shareholders have previously submitted a list
of all written contracts and bids and as further detailed and a summary of all
oral contracts and bids of the following categories to which COASTLINE is a
party:
(i) Contracts not made in the ordinary course of business
(excluding this Agreement and the Exhibits hereto), and all material
contracts, whether or not made in the ordinary course of business;
(ii) Employment contracts;
(iii) Contracts with a labor union or association;
(iv) Bonus, pension, profit sharing, retirement, stock
purchase, stock option, hospitalization, insurance or similar plans providing
employee benefits;
(v) Distribution, franchise, sales agency or advertising
contracts;
(vi) Output or requirements agreements;
(vii) Any indenture, mortgage deed of trust or lease;
(viii) Options with respect to any property, real or
personal, whether as grantor or grantee;
(ix) Contracts or outstanding bids involving potential
expenditures or liabilities of COASTLINE in excess of $1,000.00;
(x) Contracts continuing over a period of more than one
(1) year from their respective dates;
(xi) Contracts or commitments relating to commission
arrangements with others;
(xii) Patent, trade name, and all other license agreements,
to which COASTLINE is a party, either as licensor or licensee;
(xiii) Contracts containing covenants limiting the freedom
of COASTLINE to compete in any line of business or with any person; and
(xiv) Agreements evidencing all indebtedness.
There is no default or event that with notice or lapse of time, or both, would
constitute a default by COASTLINE, or to COASTLINE's knowledge, any other party
to any of these agreements. COASTLINE has received no notice that any party to
any of these agreements intends to cancel or terminate any of these agreements.
COASTLINE is not a party to, nor is COASTLINE or the property of COASTLINE bound
by any agreement that is materially adverse to the business, properties or
financial condition of COASTLINE. COASTLINE is not a party to any significant
contract except as provided in writing.
(s) Banks. Prior to the execution of this Agreement, the
Shareholders have delivered to WHAM pursuant to this subparagraph a complete
list showing the name of each bank in which COASTLINE maintains accounts
(including a description of the account), certificates of deposit or safe
deposit boxes and the names of all persons authorized to draw thereon or to have
access thereto.
(t) Litigation. There is no action, suit or proceeding pending
before any court or governmental agency, authority or body and, to knowledge of
COASTLINE, there is no action, suit proceeding threatened or pending which, if
it were to result in a decision adverse to COASTLINE, would in the judgment of
COASTLINE result in any material adverse change in the condition, financial or
otherwise, business or prospects of COASTLINE or would materially adversely
affect its properties or assets.
(u) No Resulting Breach or Default. The consummation of the
transactions contemplated by this Agreement will not result in or constitute any
of the following: (i) a default or any event that, with notice or lapse of time
or both, would be a default, breach, or violation of applicable law or
regulation or of the Articles of Incorporation or Bylaws of COASTLINE, or any
judgment, order, writ, injunction, or decree of any court or governmental
authority or of any lease, license, promissory note, conditional sales contract,
commitment, indenture, mortgage, deed of trust, or other agreement, instrument,
or arrangement to which COASTLINE is a party or by which its property is bound;
(ii) an event that would permit a party to terminate any agreement or to
accelerate the maturity of any indebtedness or other
obligation of COASTLINE, or (iii) the creation or imposition of any security
interest, lien, charge, or encumbrance on any of the properties or assets of
COASTLINE.
(v) Corporate Documents. COASTLINE has furnished to WHAM for its
examination (i) copies of the Articles of Incorporation and Bylaws of COASTLINE,
including all amendments, (ii) the complete minute books of COASTLINE of all
meetings of the shareholders and Board of Directors of COASTLINE, (iii) the
stock transfer books of COASTLINE setting forth all transfers of capital stock.
The meetings of the Board of Directors and Shareholders referred to therein were
duly called and duly held and the signatures appearing on all documents
contained therein are the true signatures of the person purporting to have
signed the same. All documents delivered hereto contain accurate records of all
meetings and accurately reflect all corporate action of the stockholders and
directors of COASTLINE.
(w) Compliance with Other Instruments, etc.; None Burdensome.
To the best of the Shareholder's knowledge and belief, COASTLINE is not in
violation of any term or provision of any charter, by-law, mortgage, indenture,
contract, agreement, instrument, judgment, decree, order, injunction, statute,
rule or regulation. The execution, delivery and performance of and compliance
with this Agreement and the COASTLINE Shares to be exchanged hereunder will not
result in any such violation or be in conflict with or constitute a default
under any such term or provision, or result in the creation of any mortgage,
lien, encumbrance or charge upon any of the properties or assets of COASTLINE
pursuant to any such term or provision. There is no term or provision of this
Agreement which materially adversely affects the business, prospects, condition
(financial or other), or operations of COASTLINE or any of its properties or
assets.
(x) Indebtedness to Officers, Directors and Shareholders.
COASTLINE is not indebted to any person who is an officer, director or
shareholder of COASTLINE in any amount whatsoever other than for salaries for
services rendered or for reimbursable business expenses.
(y) Brokerage and Finder's Fees. COASTLINE has not incurred
any unpaid liability to any broker, finder or agent for any brokerage fees,
finder's fees or commissions with respect to the transactions contemplated by
this Agreement.
(z) Full Disclosure. On or prior to the date of the execution
of this Agreement, the Shareholders have delivered or made available to WHAM
all of the material documents and contracts to which COASTLINE is a party which
in any way affects any of the properties, assets or business of COASTLINE.
Neither the Financial Statements referred to in subparagraph (e) of this
Paragraph nor any other certificate or statement furnished to WHAM by the
Shareholders or in behalf of COASTLINE in connection with the transactions
contemplated hereby nor this Agreement contains any untrue statement of a
material fact, known as of the date thereof, or omits to state a material fact
necessary in order to make the statements contained therein or herein not
misleading. There is no known fact which materially adversely affects the
business, prospects or condition (financial or other) or operations of COASTLINE
or any of its properties or assets which has not been set forth herein or
disclosed by the Financial Statements referred to herein or in any certificate
or statement furnished to WHAM by the Shareholders or in behalf of COASTLINE.
4. Conduct of COASTLINE's Business Pending Closing. COASTLINE and
the Shareholders hereby covenant and agree with WHAM that between the date
hereof and the Closing Date:
(a) COASTLINE will not, without the prior written consent of
WHAM, amend or otherwise change its Articles of Incorporation or By-laws, or
any instrument similar in purpose and intent to them.
(b) The Shareholders will not, without the prior written consent
of WHAM, transfer or encumber in any way, voluntarily or involuntarily, any
of the COASTLINE Shares.
(c) COASTLINE will not declare or pay any dividend or make any
other distribution of assets of any kind whatsoever to any of its shareholders
in redemption of or as the purchase price for any of its capital stock, or in
discharge or cancellation, whether in whole or in part, of any indebtedness,
whether in payment of principal, interest or otherwise, owing to any of such
shareholders.
(d) COASTLINE will conduct its business diligently in the ordinary
course, use its best efforts to preserve intact its business organization, use
its best efforts to retain in its employ all of its key employees, and use its
best efforts to preserve its relationships with its
suppliers and customers and others having business relations with it.
(e) COASTLINE will not make any commitments for capital
expenditures or for indirect charges exceeding $1,000 except with respect to
expenditures required in the normal course of performing current contracts.
(f) COASTLINE will not sell or transfer any of its assets,
cancel any debts or claims, or mortgage, pledge or subject to lien, charge or
encumbrance of any kind, except liens for taxes not due, any of its assets,
except in the ordinary course of business.
(g) COASTLINE will not, except in the ordinary course of business
amend or terminate any material contract or agreement to which it is a party, or
enter into or become a party to any contract or agreement under which (i) the
value of services to be performed or the cost of goods to be sold will exceed
$1,000; or (ii) the reasonably anticipated costs and expenses will exceed the
anticipated receipts.
(h) COASTLINE will continue in force its existing insurance
policies, subject only to variation in amounts required by the ordinary
operations of its business.
(i) COASTLINE will not increase the compensation payable or to
become payable to any of its officers, directors, employees or agents, or any
bonus payment or similar arrangement made to or with any of such officers,
directors, employees or agents.
(j) COASTLINE will not incur any indebtedness to any person who is
an officer, director or shareholder of COASTLINE in any amount whatsoever other
than for salaries for services rendered or for reimbursable business expenses.
(k) COASTLINE and its representatives will keep confidential any
information not otherwise readily available from public sources which they or
their representatives obtain from WHAM concerning the properties, assets and
business of WHAM.
5. Representations and Warranties of WHAM. WHAM hereby makes the
following representations and warranties in reliance upon which the COASTLINE
Shareholders have entered into this Agreement.
(a) Organization and Good Standing. WHAM is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power to carry on its business as it is now
being conducted and to own and operate the properties now owned, operated or
leased by it. WHAM is qualified to do business as a foreign corporation in all
states in which the nature of the business carried on and properties owned or
leased by WHAM requires WHAM to be so qualified in any other jurisdiction.
WHAM's filings with the Securities and Exchange Commission, Washington, D.C.
("SEC"), are current and have been timely filed. WHAM will ensure that the
latest Form 10-QSB, for the quarter ended February 28, 1998, is or will be
timely filed with the SEC.
(b) Authority. The execution of this Agreement by WHAM and its
delivery to the Shareholders has been duly authorized by the Board of Directors
of WHAM, and no further corporate action is necessary on the part of WHAM to
make this Agreement valid and binding upon WHAM in accordance with its terms.
(c) Capitalization. The authorized capitalization of WHAM consists
of 50,000,000 shares of common stock, $0.00001 par value per share, and
5,000,000 shares of preferred stock, $0.00001 par value per share, of which
362,515 shares of Common are issued and outstanding, fully paid and non-
assessable, and no shares of preferred stock have been issued.
(d) Litigation. There is no action, suit or proceeding pending
before any court or governmental agency, authority or body and, to the knowledge
of WHAM, there is no action, suit proceeding threatened or pending which, if it
were to result in a decision adverse to WHAM, would in the judgment of WHAM
result in any material adverse change in the condition, financial or otherwise,
business or prospects of WHAM or would materially adversely affect its
properties or assets.
(e) No Defaults. The consummation of the transactions contemplated
by this Agreement will not result in or constitute any of the following: (i) a
default or any event that, with notice or lapse of time or both, would be a
default, breach, or violation of applicable law or regulation or of the Articles
of Incorporation or Bylaws of WHAM, or any judgment, order, writ, injunction, or
decree of any court or governmental authority or of any lease, license,
promissory note, conditional sales contract, commitment,
indenture, mortgage, deed of trust, or other agreement, instrument, or
arrangement to which WHAM is a party or by which its property is bound; (ii)
an event that would permit any party to terminate any agreement or to
accelerate the maturity of any indebtedness or other obligation of WHAM, or
(iii) the creation or imposition of any security interest, lien, charge, or
encumbrance on any of the properties or assets of WHAM.
6. Indemnification by the Shareholders. The Shareholders (hereafter the
"Seller Group"), jointly and severally, shall indemnify, defend and hold
harmless WHAM against and in respect of any and all actions, causes of action,
assessments, claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries and deficiencies, including any liabilities for obligations
which arise after the Closing Date based on events or conditions occurring
before the Closing Date, and interest, penalties and reasonable attorneys' fees
and expenses, that WHAM shall incur or suffer, which arise, result from or
relate to any inaccuracy in, or any breach of any of the Seller Group's
representations or warranties, or any failure by the Seller Group to perform any
of their covenants or agreements in this Agreement or in any schedule,
certificate, exhibit or other instrument furnished or to be furnished by any of
the Seller Group under this Agreement; provided, however, that the right to
indemnity as aforesaid with respect to a breach by the Seller Group or any of
their representations or warranties in this Agreement shall be limited by the
following: (i) such indemnity shall apply only if the facts or circumstances
resulting in such breach are such as to result in damages to WHAM in excess of
$10,000 in the aggregate; and (ii) such right to indemnity shall apply only as
to all claims giving rise to a right of indemnity hereunder of which WHAM has
received actual notice within twenty-four (24) months after the Closing Date.
7. Indemnification by WHAM. Subject to the terms and conditions of
this Xxxxxxxxx 0, XXXX hereby agrees to indemnify, defend and hold harmless
the Shareholders and their respective successors, if any, and their officers,
directors and controlling persons, at any time after the Closing Date, from
and against all demands, claims, actions, or causes of action, assessments,
losses, damages, liabilities, costs and expenses, including, without
limitation, interest, penalties and attorneys' fees and expenses, which were
reasonably incurred by or imposed upon the Shareholders or COASTLINE, net of
any insurance proceeds received by the Shareholders or COASTLINE with respect
thereto, asserted against, resulting to, imposed upon or incurred by the
Shareholders or COASTLINE, directly or indirectly, by reason of or resulting
from any misrepresentation, breach of any warranty, non-performance or breach of
any covenant, obligation or agreement of WHAM contained in this Agreement;
provided, however, that the right to indemnity as aforesaid with respect to a
breach by WHAM or any of its representations or warranties in this Agreement
shall be limited by the following: (i) such indemnity shall apply only if the
facts or circumstances resulting in such breach are such as to result in damages
to the Shareholders or COASTLINE in excess of $10,000 in the aggregate; and (ii)
such right to indemnity shall apply only as to all claims giving rise to a right
of indemnity hereunder of which the Shareholders or COASTLINE has received
actual notice within twenty-four (24) months after the Closing Date.
8. Claims by Third Parties. The obligations and liabilities of an
indemnifying party under any provision of this Agreement with respect to
claims relating to third parties shall be subject to the following terms and
conditions:
(a) Whenever any indemnified party shall have received notice that
a claim has been asserted or threatened against such indemnified party, which,
if valid, would subject the indemnifying party to an indemnity obligation under
this Agreement, the indemnified party shall promptly notify the indemnifying
party of such claim in the manner described in Paragraph 22; provided, however,
that the failure of the indemnified party to give timely notice hereunder shall
not relieve the indemnifying party of its indemnification obligations under this
Agreement unless, and only to the extent that, such failure caused the damages
for which the indemnifying party is obligated to be greater than they would have
been had the indemnified party given timely notice.
(b) The indemnifying party or its designee will have the right but
not the obligation, to assume the defense of any claim described in Paragraph 6
or 7 above, provided, however, the indemnified party shall have the right at its
option to defend and to compromise or settle such claim which compromise or
settlement shall be made only with the written consent of the indemnifying
party, such consent not be unreasonably withheld. If the indemnifying party
fails to assume the defense of such claim within 15 days after receipt of notice
of a claim pursuant to Paragraph 22, the indemnified party against which such
claim has been asserted will (upon delivering notice to such effect to the
indemnifying party) have the right to undertake, at the indemnifying party's
cost and expense, the defense, compromise or settlement
of such claim on behalf of and for the account and risk of the indemnifying
party, subject to the right of the indemnifying party to assume the defense of
such claim at any time prior to settlement, compromise or final determination
thereof and provided, however, that the indemnified party shall not enter into
any such compromise or settlement without the written consent of the
indemnifying party. In the event the indemnified party assumes defense of the
claim, the indemnified party will keep the indemnifying party reasonably
informed of the progress of any such defense, compromise or settlement. The
indemnifying party shall not be liable for any settlement of any action effected
without its consent, but if settled with the consent of the indemnifying party
or if there be a final judgment beyond review or appeal, for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless an
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Any party who does not undertake the defense of a claim
may, at its own expense, retain such additional attorneys and other advisors as
it shall deem necessary, which attorneys and advisors will be permitted by the
party undertaking such defense, and its attorneys, to observe the defense of
such claim.
9. Indemnity for Taxes of Indemnified Party. Each party hereto further
agrees that, with respect to payment or indemnity under this Paragraph 9, such
payment or indemnity shall include any amount necessary to hold the indemnified
party harmless on an after-tax basis from all taxes required to be paid with
respect to the receipt of such payment or indemnity under the laws of any
Federal, state or local government or taxing authority in the United States, or
under the laws of any foreign government of taxing authority or governmental
subdivision of a foreign country.
10. Shareholders' Representatives. The Shareholders hereby irrevocably
designate and appoint Xxxxxxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxxxx, Xx., Esq., or
either of them, as their agents and attorneys in fact ("Shareholders'
Representatives"), with full power and authority until the Closing to execute,
deliver, and receive on their behalf all notices, requests, and other
communications hereunder; to fix and alter on their behalf the date, time, and
place of the Closing; to waive, amend, or modify any
provisions of this Agreement, and to take such other action on their behalf in
connection with this Agreement, the Closing, and the transactions contemplated
hereby as such agent or agents deem appropriate; provided, however, that no such
waiver, amendment, or modification may be made if it would decrease the number
of shares to be issued to the Shareholders or increase the extent of their
obligation to indemnify WHAM hereunder.
11. Conditions Precedent to Shareholders' Obligations. The
obligations of the Shareholders hereunder are subject to each of the
conditions set forth below being fulfilled on the Closing Date. Any of such
conditions may, at the option of the Shareholders, be waived:
(a) Opinion of Counsel. The Shareholders shall have received an
opinion of Xxxx X. Xxxxxxx, Xx., Esq., counsel for WHAM, dated as of the Closing
Date, to the effect that:
(i) WHAM is a corporation duly organized, validly existing
and in good standing under the laws of the Delaware.
(ii) WHAM's Board of Directors have approved the
transactions contemplated by this Agreement.
(iii) All SEC filings have been timely made, including those
for the latest quarter.
(b) Conditions Performed. Except as provided herein, as of the
Closing Date, all the terms and conditions of this Agreement to be complied
with and performed by WHAM at or before the Closing Date shall have been
complied with or performed in all material respects.
(c) Representations and Warranties True at Closing. The
representations and warranties of WHAM in this Agreement shall be correct in
all material respects at and as of the Closing Date, and WHAM shall have
delivered to the Shareholders a certificate to such effect signed by an
executive officer of WHAM.
12. Conditions of WHAM's Obligations. The obligations of WHAM
hereunder are subject to each of the conditions set forth below being
fulfilled on the Closing Date, or thereafter as provided below. Any of such
conditions can be waived by WHAM.
(a) COASTLINE's Board of Directors' Approval. The Board of
Directors of COASTLINE shall have approved the transactions contemplated by
this Agreement.
(b) Opinion of Counsel. On or before the Closing Date, WHAM
shall have received an opinion of Xxxxxx X. Xxxxxxxxx, Xx., Esq., counsel for
COASTLINE, dated the Closing Date, as to the matters below and setting forth
the documents examined as the basis therefor:
(i) COASTLINE is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware with requi
site corporate power and authority to transact it business and own its
properties.
(ii) All of the equitable interests of COASTLINE have been
duly authorized and issued, are validly outstanding, are fully paid and
non-assessable.
(iii) The capitalization of COASTLINE is as set forth in this
Agreement. Other than as provided herein, there are no outstanding options or
rights with respect to the capital stock of COASTLINE or any securities
convertible into or exchangeable for shares of such stock, or any other
commitments of any kind for the issuance of additional shares of interests or
securities of COASTLINE.
(iv) Neither the execution and delivery of this Agreement nor
the performance of the transactions contemplated hereby will (a) constitute a
breach of the Articles of Incorporation or By-Laws of COASTLINE or any evidence
of indebtedness or agreement to which it or they are a party, or constitute an
event which entitles any other party to any agreement to which COASTLINE is a
party to terminate such agreement, (b) cause a default under any mortgage or
deed of trust, or other lien, charge or encumbrance to which any of COASTLINE's
property is subject, (c) accelerate, or constitute an event entitling, or which
would on notice or lapse of time or both, entitle the holder of any indebtedness
of COASTLINE to accelerate, or (d) conflict with or result in the breach of any
writ, injunction or decree of any court or governmental instrumentality;
(v) This Agreement has been duly and validly authorized,
executed and delivered by the Shareholders and COASTLINE and is valid and
binding upon them in accordance with its terms;
(vi) The Shareholders have good and marketable title to the
shares of capital stock of COASTLINE with full right and power to transfer and
sell said shares to WHAM, free and clear of all liens, encumbrances and claims;
(vii) Such counsel does not know of any action, suit,
proceeding or claim pending or threatened against COASTLINE, its or their
property or business, or the transactions contemplated by this Agreement;
(viii) No consent, approval or other order of any governmental
or administrative board or body is required for the execution and delivery by
the Shareholders of this Agreement and the sale of the COASTLINE Shares to WHAM
pursuant hereto.
(ix) COASTLINE has no subsidiaries.
(c) Instruments of Transfer. WHAM shall have received instruments
of transfer effecting the transfer of the COASTLINE Shares to WHAM.
(d) Compliance with Conditions. As of the Closing Date, all the
terms and conditions of this Agreement to be complied with and performed by
COASTLINE on or before the Closing Date shall have been complied with and
performed in all material respects. COASTLINE shall have delivered to WHAM
certificate(s) to such effect in form and substance satisfactory to WHAM.
(e) Correctness of Representations and Warranties. The
representations and warranties of COASTLINE herein shall be correct in all
material respect at and as of the Closing Date, and COASTLINE, respectively,
shall have delivered to WHAM a certificate to such effect.
(f) Certificate of Good Standing. COASTLINE shall deliver to WHAM
at the Closing, a certificate issued by the Delaware Secretary of State
certifying as to the good standing of COASTLINE as of a date not more than
fifteen (15) days prior to the Closing Date.
13. Additional Covenants and Undertaking of the parties. The
performance and adherence to the following undertakings and covenants of WHAM
and the Shareholders are additional conditions to the parties' obligations
under this Agreement.
(a) Notice of Certain Defaults or Claims. Each party shall give
prompt notice to the other of any notice of default relating to either party
received subsequent to the date of this Agreement and prior to the Closing Date
and of the assertion of any claim which, if upheld, or the occurrence of any
event, which would render inaccurate any representation or warranty of the
affected party.
(b) Implementation of Representations and Warranties. Each party
will take all reasonable action within its or their capability necessary to
render accurate as of the Closing Date such party's representations and
warranties contained in this Agreement and each party will refrain from taking
any action which would render inaccurate as of the Closing Date any such
representations or warranties.
(c) Delivery of Additional Documents. Each party will execute and
deliver, or cause to be executed and delivered, such additional assignments,
endorsements and other documents as the other party may reasonably request for
the purpose of carrying out this Agreement.
(d) Consents. The Shareholders shall cause COASTLINE to prosecute
and obtain appropriate consents and authorization of all cognizant government
agencies necessary to approve the transfer of control of COASTLINE without
adverse effects upon the continuation of all contracts, if any.
(e) Special Covenants of COASTLINE and the Shareholders. COASTLINE
and the Shareholders agree that following the Closing, they will cause the
following actions to be taken by WHAM:
(i) Press Releases. Any press releases necessary will be
promptly disseminated by customary means.
(ii) SEC Filings. COASTLINE and the Shareholders acknowledge
that WHAM is subject to the reporting and informational requirements of Section
13 of the Securities Exchange Act of 1934, as amended ("Exchange Act"). Such new
directors and executive officers and all Shareholders who after the Exchange
hold five percent or more of WHAM's common stock shall as applicable promptly
and timely file Form 3 reports and Schedule 13D's with the Securities and
Exchange Commission ("Commission"), as required by law. COASTLINE and the
Shareholders also agree that after the Closing they will cause WHAM to timely
file a report on Form 8-K and to timely file (within all permitted extensions)
all audited and proforma consolidated financial statements required by Form 8-K.
(f) WHAM Shareholder Approval. The parties acknowledge that WHAM,
absent first obtaining the consent of its shareholders for the Exchange, must
comply with Section 14(f) of the Exchange Act and Rule 14f-1 of the Commission
thereunder, which requires ten days' prior notice to the
Commission and to WHAM's shareholders before the new members of WHAM's board of
directors designated by COASTLINE may take office. WHAM, COASTLINE and the
Shareholders agree that the written concurrence pursuant to Section 228 of the
Delaware General Corporation Law of two (2) shareholders of WHAM holding in the
aggregate more than fifty percent of WHAM's issued and outstanding shares in
lieu of a general meeting of its shareholders, will constitute the approval of
WHAM's shareholders.
(g) No Reverse Split. The parties acknowledge that, following the
Closing, the Shareholders when acting as a group will hold the voting power to
effect any corporate action. It is expressly agreed among WHAM, COASTLINE and
the Shareholders that, for a period of eighteen (18) months following the
Closing ("Period"), WHAM shall not effect any "prohibited action," defined as
any reverse split or combination of its common shares, or any reorganization,
recapitalization or other action whatsoever (other than a merger, exchange,
consolidation or similar transaction with an unaffiliated entity) which has the
effect of changing the number of outstanding WHAM common shares into a smaller
number of common shares. Each Shareholder expressly agrees that, during the
Period, he, she or it will not vote for or support any such prohibited action
nor grant a proxy or other voting right to a person other than a Shareholder to
vote at any meeting or act by written consent on a proposal to effect a
prohibited action, and will affirmatively oppose any attempt to effect a
prohibited action during the Period.
This provision is intended for the protection of existing shareholders of
WHAM and persons who become shareholders during the Period, and all parties
agree that this provision and the duration of the Period is reasonable. The
parties expressly agree that all shareholders of WHAM at the time of the taking
of a prohibited action are or shall be third party beneficiaries of this
provision, and any one or more of such shareholders may bring an injunctive
action to prevent a prohibited action(s) or an action to force WHAM to revoke or
rescind a prohibited action as if it had never been effected, or may otherwise
judicially enforce this provision. Any shareholder prevailing in such injunctive
or other action shall be entitled to reimbursement from WHAM for the costs and
reasonable attorneys' fees incurred in bringing such action(s).
14. The Closing.
(a) Time and Place. The Closing of the transactions contemplated
by this Agreement shall be at the offices of Xxxx X. Xxxxxxx, Xx., Esq., XXXXXXX
& COMPANY, 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX, at 2:00 p.m. on March 6,
1998, or any other date or place that may mutually be agreed upon by the
parties.
(b) Documents to be Delivered by the Shareholders on the Closing
Date. On the Closing Date, the Shareholders shall deliver to WHAM, in form
satisfactory to WHAM's counsel, the following documents:
(i) copies of certificates representing the COASTLINE Shares,
on which there is no endorsement, legend or notice of adverse claims, duly
endorsed by the Shareholders for transfer;
(ii) all instruments referred to in Paragraph 13 above, the
delivery of which are therein specified as conditions to WHAM's obligation to
close.
(c) Documents Delivered by WHAM on Closing Date. All instruments
referred to in Paragraph 11 above, the delivery of which are therein specified
as conditions to the Shareholders' obligation to close.
15. Access to Information.
(a) COASTLINE's Access to Information and Documentation. WHAM will
afford to a representative or representatives of COASTLINE the opportunity upon
reasonable request and during regular business hours to make a reasonable
investigation of WHAM's operations. If for any reason the Closing contemplated
by this Agreement is not consummated, COASTLINE and the Shareholders agree not
to disclose to any person any non-public information obtained by them from such
access and investigation.
(b) WHAM's Access to Information and Documentation. The
Shareholders shall cause COASTLINE to afford to representatives of WHAM, upon
reasonable request and during regular business hours, full and free access to
the property, business records, stock book, minute books, records and books of
account, instruments, documents and evidences of title of COASTLINE so that WHAM
may have full opportunity to make such investigation as it shall desire to make
of the affairs of COASTLINE in its sole and absolute discretion. If
for any reason the Closing contemplated by this Agreement is not consummated,
WHAM agrees not to disclose to any person any information obtained by it from
such access and investigation.
(c) Effect of Investigations. Any investigations of COASTLINE or
WHAM as permitted by this Paragraph shall not affect any of the representations
and warranties hereunder and shall be conducted in such manner as will not
interfere unreasonably with the operations of the business or the personnel of
WHAM or COASTLINE, as the case may be.
16. Costs.
(a) Finders' Fees. Each of the Shareholders, COASTLINE and WHAM
represents and warrants that it has dealt with no broker or finder in connection
with any of the transactions contemplated by this Agreement, and, insofar as it
knows, no broker or other person is entitled to any commission or finder's fee
in connection with any of these transactions. The Shareholders jointly and
severally agree to indemnify and hold harmless WHAM, and WHAM agrees to
indemnify and hold them harmless against any loss, liability, damage, cost,
claim or expense incurred by reason of any brokerage commission or finder's fee
alleged to be payable because of their individual act or omission or statement.
(b) Other Costs. WHAM, the Shareholders and COASTLINE shall each
pay all of their own costs and expenses incurred or to be incurred by it or them
incident to the preparation and carrying out of the transactions herein
contemplated.
17. Termination of This Agreement.
(a) This Agreement shall terminate:
(i) By mutual written consent of the WHAM and COASTLINE;
(ii) Automatically, without need of action by any party, if the
Closing has not occurred by the Closing date herein provided for or any
extensions agreed to by WHAM and COASTLINE;
(iii) By COASTLINE or WHAM, if:
(A) all the conditions precedent to its respective obligations
hereunder have not been satisfied or waived prior to the Closing Date, as it may
be accelerated or extended, or if any Shareholder refuses to execute this
Agreement or deliver the COASTLINE Shares as herein called for;
(B) any party shall have defaulted or refused to perform in
any material respect under this Agreement, or if WHAM or COASTLINE should have
reasonable cause to believe there has been a material representation concerning,
or failure or breach of, any representation or warranty by the other party, or
if it appears that either COASTLINE or WHAM has committed any unlawful acts
affecting the other party;
(C) the transactions contemplated in this Agreement and related
agreements have not been consummated on the Closing Date, as it may be
accelerated or extended, OR
(D) either WHAM or COASTLINE shall reasonably determine that the
transactions contemplated in this Agreement have become inadvisable by reason of
the institution or threat by any federal, state or municipal governmental
authorities or by other person whatever of a formal investigation or of any
action, suit or proceeding of any kind against either or both parties which in
one party's reasonable belief is material in light of the other party's
business, prospects, properties or financial condition;
(b) Any termination of this Agreement (other than automatic
termination) shall be made in accordance with the above listed grounds and, if
terminated by COASTLINE or WHAM, shall be accompanied by a copy of the
resolution of the terminating party's board of directors. Written notice of
termination shall be given to the other party as required in this Agreement as
promptly as is practical under the circumstances. Upon a party's receipt of such
termination notice, this Agreement shall terminate and the transactions herein
contemplated shall be abandoned without further action by the parties.
18. Form of Agreement.
(a) Subject Headings. 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) Entire Agreement; Modification. 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) Severability. 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) Counterparts. 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.
19. Parties.
(a) Parties in Interest. 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) Successors and Assigns. 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 neither
WHAM nor the Shareholders may assign any of its rights or obligations or duties
under this Agreement without the express written consent of the other party.
20. Remedies.
(a) Remedies Cumulative, etc. 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 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. 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) Specific Performance. 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) Arbitration. Any disputes arising out of this Agreement, or
the performance of duties contemplated by this Agreement shall be resolved
through arbitration in accordance with the rules of the American Arbitration
Association. Any such arbitration shall be conducted at Washington, D.C. Any
awards or decisions resulting from said arbitration shall be final and may be
enforced by any court of competent jurisdiction. If any action is brought for
the enforcement of this Agreement or to recover damages, the successful or
prevailing party or parties shall be entitled to recover reasonable attorney's
fees and other costs incurred in that action, in addition to any other relief to
which it or they may be entitled.
21. 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 Closing subject to the
provisions of Paragraphs 6 and 7 hereof.
22. 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 as follows:
If to COASTLINE: COASTLINE INTERNATIONAL, INC.
0000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
If to WHAM: WHITNEY AMERICAN CORPORATION
00000 X. Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
23. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
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
A Delaware corporation
By:
Xxxxxxx X. Xxxxxx
Its: COB, CEO
COASTLINE INTERNATIONAL, INC.
By:
Xxxxxxxxxxx Xxxxxxx
Its: COB/CEO
SHAREHOLDERS
-----------------------------------
COSTA REAL CORPORATION
By: Xxxxxxxxxxx Xxxxxxx
-----------------------------------
TWENTY FIRST CENTURY HERITAGE TRUST
Exhibit A
Name No. Of COASTLINE Shares No. Of WHAM Shares
Costa Real Corporation 500 875,000
Twenty First Century Heritage Trust 500 875,000
---- ---------
TOTAL 1000 1,750,000
