1
EXHIBIT 2
ACQUISITION
AGREEMENT (the "Agreement") dated April [ILLEGIBLE] incorporated under
the laws of the State of Nevada [ILLEGIBLE] DIGITAL MANUFACTURING INCORPORATED,
a company incorporated under the laws of the State of Texas (hereinafter
referred to as "DIGITAL") and the persons listed on Exhibit "A-1" attached
hereto and made a part hereof, being all of DIGITAL's stockholders now and as of
the closing date of this Agreement (hereinafter referred to as the "Sellers").
WHEREAS, the Sellers own a total of 1,000 shares of common stock, no par
value, of DIGITAL, said shares being one hundred (100%) percent of the issued
and outstanding common stock of DIGITAL; and
WHEREAS, the Sellers desire to sell and AVE desires to purchase one
hundred (100%) percent of such shares;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereby agree as
follows:
1. Purchase and Sale. The Sellers hereby agree to sell, transfer, assign
and convey to AVE and AVE hereby agrees to purchase and acquire from the
Sellers, one hundred (100%) percent of DIGITAL's issued and outstanding common
stock (the "DIGITAL Common Shares"), in a reorganization pursuant to Section 368
(a)(1)(B) of the Internal Revenue Code.
2. Purchase Price. The aggregate purchase price to be paid by AVE for
the DIGITAL Common Shares shall be 8,500,000 shares of AVE $0.001 par value
voting common stock, (the "AVE Common Shares"). The AVE Common Shares will be
issued as follows: (a) to the Sellers (8,500,000); (b) to private investors
acquiring shares in exchange for their investment of $400,000 in DIGITAL
(533,333); and (c) to consultants for services rendered under Rule 504
(1,063,874 shares) described in Section 12 herein ("Consultants") in accordance
with Exhibit "A-2", attached hereto. No fractional shares of AVE Common Stock
will be issued; in lieu thereof, the number of shares of AVE Common Stock to be
issued to each Seller will be rounded up to the next whole share. Each of the
Sellers hereby agrees to the terms of this Agreement.
3. Warranties and Representations of DIGITAL and Sellers. In order to
induce AVE to enter into this Agreement and to complete the transaction
contemplated hereby, DIGITAL and Sellers warrant and represent to AVE as of the
date hereof and as of the Closing that:
(a) Organization and Standing. DIGITAL is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas, is qualified to do business as a foreign corporation in ______ __________
and in every other state or jurisdiction in which it operates to the extent
required by the laws of such states and jurisdictions, and has full power and
authority to carry on its business as now conducted and to own and operate its
assets, properties and business. Attached hereto as Exhibit "B" are true and
correct copies of DIGITAL's Certificate of Incorporation,
2
amendments thereto and all current By-laws of DIGITAL. No changes thereto will
be made in any of the Exhibit "B" documents before the Closing.
(b) Capitalization. As of the date hereof, DIGITAL's entire
authorized equity capital consists of __,1,000 shares of Common Stock $0.00 par
value, of which 1,000 shares of Common Stock are issued and outstanding. As of
the Closing Date, there will be no other voting or equity securities authorized
or issued, nor any authorized or issued securities convertible into voting
stock, and no outstanding subscriptions, warrants, calls, options, rights,
commitments or agreements by which DIGITAL or the Sellers are bound, calling for
the issuance of any additional shares of common stock or any other voting or
equity security. All of such Digital Common Shares have been duly authorized and
validly issued and are fully paid and non-assessable and were not issued in
violation of any preemptive rights or any applicable securities laws. The 1,800
issued and outstanding DIGITAL Common Shares constitute one hundred (100%)
percent of the equity capital of DIGITAL, which includes, inter alia, one
hundred (100%) percent of DIGITAL's voting power, right to receive dividends,
when, as and if declared and paid, and the right to receive the proceeds of
liquidation attributable to common stock, if any.
(c) Ownership of DIGITAL Shares. As of the date hereof, the Sellers
are the sole owners of the DIGITAL Common Shares, free and clear of all liens,
encumbrances, and restrictions whatsoever, except that the DIGITAL Common Shares
have not been registered under the Securities Act of 1933, as amended (the "'33
Act"), or any applicable State Securities laws. By the transfer of the DIGITAL
Common Shares to AVE pursuant to this Agreement, AVE will thereby acquire good
and marketable title to 100% of the capital stock of DIGITAL, free and clear of
all liens, encumbrances and restrictions of any nature whatsoever, except by
reason of the fact that the DIGITAL Common Shares will not have been registered
under the '33 Act, or any applicable State Securities laws.
(d) Taxes. DIGITAL has filed all federal, state and local income or
other tax returns and reports that it is required to file with all governmental
agencies, wherever situate, and has paid or accrued for payment all taxes as
shown on such returns, such that a failure to file, pay or accrue will not have
a Material Adverse Effect on DIGITAL. Such returns have been prepared in
accordance with the applicable tax laws and rules and regulations thereunder to
which DIGITAL is subject and Sellers have delivered true and complete copies of
all such tax returns to AVE.
(e) Pending Actions. There are no material legal actions, lawsuits,
proceedings or investigations, either administrative or judicial, pending or
threatened, against or affecting DIGITAL, or against DIGITAL's Officers or
Directors or the Sellers that arise out of their operation of DIGITAL, except as
described in Exhibit "C" attached hereto. DIGITAL is not knowingly in violation
of any law, material ordinance or regulation of any kind whatever, including,
but not limited to laws, rules and regulations governing the sale of its
products and/or services, the '33 Act, the Securities Exchange Act of 1934 (the
"'34 Act") as amended, the Rules and Regulations of the U.S. Securities and
Exchange Commission ("SEC"), or the securities laws and regulations of any
state. Neither DIGITAL nor Sellers are subject to any order, writ, judgment,
injunction, decree, determination or award of any court, arbitrator or
administrative, governmental or regulatory authority or body.
3
(f) Governmental Regulation. No approval of any trade or professional
association or agency of government other than as set forth on Exhibit "D" is
required for any of the transactions effected by this Agreement, and the
completion of the transactions contemplated by this Agreement will not, in and
of themselves, affected or jeopardize the validity or continuation of any of
them.
(g) Ownership of Assets. Except as set forth in Exhibit "E", DIGITAL
has good, marketable title, without any liens or encumbrances of any nature
whatever, to all of the following, if any: its assets, properties and rights of
every type and description, including, without limitation, all cash on hand and
in banks, certificates of deposit, stocks, bonds, and other securities, good
will, customer lists, its corporate name and all variants thereof, trademarks
and trade names, copyrights and interests thereunder, licenses and
registrations, pending licenses and permits and applications therefor,
inventions, processes, know-how, trade secrets, real estate and interests
therein and improvements thereto, machinery, equipment, vehicles, notes and
accounts receivable, fixtures, rights under agreements and leases, franchises,
all rights and claims under insurance policies and other contracts of whatever
nature, rights in funds of whatever nature, books and records and all other
property and rights of every kind and nature owned or held by DIGITAL as of this
date, and will continue to hold such title on and after the completion of the
transactions contemplated by this Agreement; nor, except in the ordinary course
of its business, has DIGITAL disposed of any such asset since the date of the
most recent balance sheet described in Section 3(o) of this Agreement.
(h) No Interest in Suppliers, Customers, Landlords or Competitors.
Neither the Sellers nor any member of their families have any interest of any
nature whatever in any supplier, customer, landlord or competitor of DIGITAL.
(i) No Debt Owed by DIGITAL to Sellers. Except as set forth in
Exhibit "F", DIGITAL does not owe any money, securities, or property to either
the Sellers or any member of their families or to any company controlled by or
under common control with such a person, directly or indirectly.
(j) Corporate Records. All of DIGITAL's books and records, including,
without limitation, its books of account, corporate records, minute book, stock
certificate books and other records of DIGITAL are up-to-date, complete and
reflect accurately and fairly the conduct of its business in all material
respects since its date of incorporation. All reports, returns and statements
currently required to be filed by DIGITAL, with respect to the business and
operations of DIGITAL, with any governmental agency have been filed or valid
extensions have been obtained in accordance with normal procedures and all
governmental reporting requirements have been complied with.
(k) No Misleading Statements or Omissions. Neither this Agreement nor
any financial statement, exhibit, schedule or document attached hereto or
presented to AVE in connection herewith, contains any materially misleading
statement, or omits any fact or statement necessary to make the other statements
or facts therein set forth not materially misleading.
(l) Validity of the Agreement. All corporate and other proceedings
required to be taken by the Sellers and by DIGITAL in order to enter into and to
carry out this Agreement have been duly and properly taken. This Agreement has
been duly executed by the Sellers and by DIGITAL, and constitutes the
4
valid and binding obligation of each of them, except to the extent limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
relating to or effecting generally the enforcement of creditors rights. The
execution and delivery of this Agreement and the carrying out of its purposes
will not result in the breach of any of the terms or conditions of, or
constitute a default under or violate, DIGITAL's Certificate of Incorporation or
By-Laws, or any material agreement, lease, mortgage, bond, indenture, license or
other material document or undertaking, oral or written, to which DIGITAL or the
Sellers is a party or is bound or may be affected, nor will such execution,
delivery and carrying out violate any order, writ, injunction, decree, law, rule
or regulation of any court, regulatory agency or other governmental body; and
the business now conducted by DIGITAL can continue to be so conducted after
completion of the transaction contemplated hereby, with DIGITAL as a
wholly-owned subsidiary of AVE.
(m) Enforceability of the Agreement. When duly executed and
delivered, this Agreement and the Exhibits hereto which are incorporated herein
and made a part hereof are legal, valid, and enforceable by AVE according to
their terms, except to the extent limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws relating to or effecting
generally the enforcement of creditors rights, and that at the time of such
execution and delivery, AVE will have acquired title in and to the DIGITAL
Common Shares free and clear of all claims, liens and encumbrances.
(n) Access to Books and Records. AVE will have full and free access
to DIGITAL's books during the course of this transaction prior to and at the
Closing, during regular business hours.
(o) DIGITAL Financial Statements. Attached hereto as Exhibit "G-1"
are recent unaudited financial statements of DIGITAL. Before the Closing,
DIGITAL's audited financial statements will be provided to AVE, and will be
annexed hereto as Exhibit "G-2"; the DIGITAL financial statements will
accurately describe DIGITAL's financial position as of the date thereof.
DIGITAL's financial statements will have been prepared in accordance with
generally accepted accounting principles in the United States ("GAAP") (or as
permitted by regulation S-X, S-B, and/or the rules promulgated under the U.S.
Securities Act of 1933 and the U.S. Securities Exchange Act of 1934) and present
fairly in all material respects the financial condition of DIGITAL as of the
dates thereof and will have been certified by independent certified public
accountants with substantial SEC experience. Without limiting any of the
foregoing representations and warranties, there are no liabilities of DIGITAL
which will not be reflected on the DIGITAL financial statements; and the audited
financial statements in Exhibits "G-2" will show no material adverse change from
the unaudited financial statements contained in Exhibit "G-1".
(p) DIGITAL's Corporate Summary. DIGITAL's Corporate Summary,
prepared in ________________ , 1997 (attached hereto as Exhibit "L") accurately
describes DIGITAL's business, assets, proposed operations and management as of
the date thereof; since the date of the Corporate Summary, there has been no
material change in the Business Plan and no material adverse change in DIGITAL
of any kind or nature whatsoever.
(q) No Brokers. Except as set forth in paragraphs 4(b) and 12 below,
no broker, finder or investment banker is entitled to any brokerage, finder's
5
or other fee or commission in connection with any of the transactions
contemplated by this Agreement.
(r) Compliance with Laws. DIGITAL represents and warrants that it has
complied with, and is not in violation of any applicable federal, state, or
local statutes, laws or regulations as respects the ownership of its property or
the operation of its business.
(s) Compliance with Laws; Environmental or other Related Matters.
DIGITAL's operations have been conducted in all material respects in accordance
with all applicable statutes, laws, rules and regulations. DIGITAL is not in
violation of any Federal, state, local or foreign law, ordinance or regulation
or any Governmental Order applicable to DIGITAL or by which any of its
properties is subject, bound or affected.
There is no Governmental Order outstanding against DIGITAL (nor, to the best
knowledge of DIGITAL, threatened to be issued) that will or would have a
Material Adverse Effect. Except as disclosed herein, DIGITAL currently holds
(and at the Closing will hold) all the environmental, health and safety and
other permits, licenses, authorizations, certificates and approvals of
Governmental Authorities, whether Federal, state, local or foreign
(collectively, "Permits"), necessary or proper for the current use, occupancy or
operation of the Business, and all of the Permits are now and at the Closing
will be in full force and effect. Schedule "S" annexed hereto and made a part
hereof contains a list of all material Permits and all material applications for
Permits relating to DIGITAL and the Business. DIGITAL has not received and has
no reason to believe it will receive any notice that any Governmental Authority
is considering revoking, canceling, rescinding, materially modifying or refusing
to renew any of the Permits. Except as otherwise disclosed herein, there is no
existing practice, action or plan of DIGITAL and no existing condition of the
assets of DIGITAL that may give rise to any civil or criminal liability under,
or violate or prevent compliance with, any environmental, health or occupational
safety or other applicable statute, regulation, ordinance, decree or Permit
other than those practices, action, plans and conditions the existence of which
will not have a Material Adverse Effect. Schedule "T" identifies all Permits
that require consent, notification or other action to remain in full force and
effect following the consummation of the transaction contemplated hereby.
4. Warranties and Representations of AVE. In order to induce the Sellers
and DIGITAL to enter into this Agreement and to complete the transaction
contemplated hereby, AVE warrants and represents to DIGITAL and Sellers that:
(a) Organization and Standing. AVE is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada, is
qualified to do business as a foreign corporation in every other state in which
it operates to the extent required by the laws of such states, and has full
power and authority to carry on its business as now conducted and to own and
operate its assets, properties and business.
(b) Capitalization. AVE's entire authorized equity capital consists
of 15,000,000 shares of voting common stock, $.001 par value, of which 102,793
shares are issued and outstanding as of the date hereof. As of the Closing,
there will be a total of 10,200,000 post-reverse split shares of AVE issued and
outstanding, after giving effect to (a) the issuance of 8,500,000 shares under
Rule 144 to DIGITAL's shareholders; (b) the issuance of 533,333
6
Rule 144 shares to private investors in exchange for their investment of
$400,000 in DIGITAL; and (c) the issuance of 1,063,874 shares under Rule 504 to
Consultants as payment for their services under Rule 504 in connection with this
transaction). Upon issuance, all of the AVE Common Stock will be validly issued
fully paid and non-assessable. The relative rights and preferences of AVE's
equity securities are set forth on the Certificate of Incorporation, as amended
and AVE's By-laws (Exhibit "H" hereto). There are no other voting or equity
securities convertible into voting stock, and no outstanding subscriptions,
warrants, calls, options, rights, commitments or agreements by which AVE is
bound, calling for the issuance of any additional shares of common stock or any
other voting or equity security. The By-laws of AVE provide that a simple
majority of the shares voting at a stockholders' meeting at which a quorum is
present may elect all of the directors of AVE. Cumulative voting is not provided
for by the By-Laws or Certificate of Incorporation of AVE. Accordingly, as of
the Closing the 8,500,000 shares being issued to and acquired by the Sellers
(not including the shares issued to Consultants) will constitute 83.33% of the
10,200,000 shares of AVE which will then be issued and outstanding, (including
after giving effect to the issuance of the above-stated number of shares as
payment for all consulting fees and commissions) which includes, inter alia,
that same percentage of AVE's voting power, right to receive dividends, when, as
and if declared and paid, and the right to receive the proceeds of liquidation
attributable to common stock, if any.
(c) Ownership of Shares. By AVE's issuance of the AVE Common Shares
to the Sellers pursuant to this Agreement, the Sellers will thereby acquire good
and marketable title thereto, free and clear of all liens, encumbrances and
restrictions of any nature whatsoever, except by reason of the fact that such
AVE shares will not have been registered under the '33 Act.
(d) Significant Agreements. AVE is not and will not at Closing be
bound by any of the following other than where already disclosed in any other
exhibit, unless specifically listed in Exhibit "I" hereto:
(i) Employment, advisory or consulting contract;
(ii) Plan providing for employee benefits of any nature;
(iii) Lease with respect to any property or equipment;
(iv) Contract or commitment for any future expenditure in excess
of $1,000;
(v) Contract or commitment pursuant to which it has assumed,
guaranteed, endorsed, or otherwise become liable for any
obligation of any other person, firm or organization;
(vi) Contract, agreement, understanding, commitment or
arrangement, other than in the normal course of business,
not fully disclosed or set forth in this Agreement;
(vii) Agreement with any person relating to the dividend,
purchase or sale of securities, that has not been settled
by the delivery or payment of securities when due, and
which remains unsettled upon the date of this Agreement.
7
(e) Taxes. AVE has filed all federal, state and local income or other
tax returns and reports that it is required to file with all governmental
agencies, wherever situate, and has paid all taxes a shown on such returns such
that a failure to file, pay or accrue will not have a Material Adverse Effect on
AVE. Such returns have been prepared in accordance with the applicable tax laws
and rules and regulations thereunder to which AVE is subject and AVE has
delivered true and complete copies of all such tax returns for the periods
_______________ to _______________ to DIGITAL.
(f) Absence of Liabilities. At and as of the Closing Date, AVE will
have no liabilities of any kind or nature, undisclosed fixed or contingent,
except for (i) the costs, including legal and accounting fees and other
expenses, in connection with this transaction, for which AVE agrees to be
responsible and to pay in full at or before the Closing, and (ii) the
transaction described in section 7(b)(vi) herein.
(g) No Pending Actions. There are no material legal actions,
lawsuits, proceedings or investigations, either administrative or judicial,
pending or threatened, against or affecting AVE, or against any of AVE's
officers or directors and arising out of their operation of AVE that are
reasonably likely to have a Material Adverse Effect on York. AVE is not
knowingly in violation of any law, ordinance or regulation of any kind whatever,
including, but not limited to, the '33 Act, the 1934 Act, as amended, the Rules
and Regulations of the SEC, or the securities laws and regulations of any state.
AVE is not an investment company as defined in the Securities laws. AVE is not
required to file reports pursuant to either Section 12(g) or 15(d) of the '34
Act.
(h) Corporate Records. All of AVE's books and records, including,
without limitation, its books of account, corporate records, minute book, stock
certificate books and other records are up-to-date, complete and reflect
accurately and fairly the conduct of its business in all material respects since
its date of incorporation; all of said books and records will be delivered to
AVE's new management at the Closing.
(i) No Misleading Statements or Omissions. Neither this Agreement nor
any financial statement, exhibit, schedule or document attached hereto or
presented to DIGITAL in connection herewith contains any materially misleading
statement, or omits any fact or statement necessary to make the other statements
or facts therein set forth not materially misleading.
(j) Validity of the Agreement. All corporate and other proceedings
required to be taken by AVE in order to enter into and to carry out this
Agreement have been duly and properly taken. This Agreement has been duly
executed by AVE, and constitutes a valid and binding obligation of AVE except to
the extent limited by applicable bankruptcy reorganization, insolvency,
moratorium or other laws relating to or effecting generally the enforcement of
creditors rights. The execution and delivery of this Agreement and the carrying
out of its purposes will not result in the breach of any of the terms or
conditions of, or constitute a default under or violate, AVE's Certificate of
Incorporation or By-Laws, or any material agreement, lease, mortgage, bond,
indenture, license or other document or undertaking, oral or written, to which
AVE is a party or is bound or may be affected, nor will such execution, delivery
and carrying out violate any order, writ, injunction, decree, law, rule or
regulation of any court, regulatory agency or other governmental body.
8
(k) Enforceability of the Agreement. When duly executed and
delivered, this Agreement and the Exhibits hereto which are incorporated herein
and made a part hereof are legal, valid, and enforceable by DIGITAL and the
Sellers according to their terms, except to the extent limited by applicable
bankruptcy reorganization, insolvency, moratorium or other laws relating to or
effecting generally the enforcement of creditors rights; and at the time of such
execution and delivery, the Sellers will have acquired good, marketable title in
and to the AVE Common Shares acquired pursuant hereto, free and clear of all
liens and encumbrances.
(l) Access to Books and Records. DIGITAL and Sellers will have full
and free access during regular business hours and on reasonable prior notice to
AVE's books and records during the course of this transaction prior to and at
the Closing.
(m) AVE Financial Statements. Before the Closing, AVE will provide
DIGITAL with recent audited financial statements, which will be certified in
accordance with GAAP by independent certified public accountants with SEC
experience.
(n) AVE Financial Condition. After consummation of all of the
transactions contemplated hereby AVE will have no assets or liabilities.
(o) Directors' Approval. Promptly upon the signing of this Agreement,
AVE's Board of Directors, by meeting or consent, will authorize the matters
described in section 7(b)(i) herein.
5. Term. All representations, warranties, covenants and agreements made
by any party herein and the exhibits attached hereto shall survive the execution
and delivery of this Agreement and payment pursuant hereto.
6. The AVE Shares and DIGITAL Shares. All of the AVE and the DIGITAL
Common Shares shall be validly issued, fully-paid and non-assessable shares of
AVE and DIGITAL Common Stock respectively, with full voting rights, dividend
rights, and right to receive the proceeds of liquidation, if any, as set forth
in the respective Articles of Incorporation.
7. Conditions Precedent to Closing. (a) The obligations of DIGITAL and
Sellers under this agreement shall be and are subject to fulfillment, prior to
or at the Closing, of each of the following conditions:
(i) That AVE's representations and warranties contained herein shall
be true and correct at the time of Closing, as if such representations and
warranties were made at such time;
(ii) That AVE in all material respects shall have performed or
complied with all agreements, terms and conditions required by this Agreement to
be performed or complied with by it prior to or at the time of the Closing;
(iii) That AVE's directors, by proper and sufficient vote taken
either by consent of directors or at a meeting duly and properly called and
held, shall have properly approved all of the matters described in Section
7(b)(i) herein; and
(iv) That AVE's common stock will be listed on the National Quotation
Bureau, Inc.'s Bulletin Board.
9
(b) The obligations of AVE under this Agreement shall be and are subject to
fulfillment, prior to or at the Closing of each of the following conditions:
(i) That AVE's Shareholders and Board of Directors, by proper and
sufficient vote, shall have approved this Agreement and the transactions
contemplated hereby; approved the contemplated reverse split of AVE's
outstanding Common Stock; approved the resignation of all of AVE's current
directors and the election of up to ___ designees of DIGITAL to serve as
directors in place of AVE's current directors; approved a change
AVE'S corporate name to a name selected by DIGITAL and will have approved
such other changes as are consistent with this Agreement and approved by DIGITAL
for submission to AVE stockholders;
(ii) That DIGITAL's and Sellers' representations and warranties
contained herein shall be true and correct at the time of Closing as if such
representations and warranties were made at such time and that there shall have
been no Material Adverse Effect with respect to DIGITAL; and York shall have
received a certificate of DIGITAL and Sellers to such an effect signed by a duly
authorized officer of DIGITAL and by each of the Sellers; and
(iii) That DIGITAL and Sellers shall have performed or complied with all
agreements, terms and conditions required by this Agreement to be performed or
complied with by them prior to or at the time of Closing Date and AVE shall have
received a Certificate of DIGITAL and Sellers to such effect signed by or duly
authorized officer of DIGITAL and by each of the Sellers;
(iv) That DIGITAL's officers will have signed non-compete clauses in the
form attached hereto as Exhibit "J";
8. Termination. This Agreement may be terminated at any time before or at
Closing, by:
(a) The mutual agreement of the parties;
(b) Any party if:
(i) Any provision of this Agreement applicable to a party shall be
materially untrue or fail to be accomplished.
(ii) Any legal proceeding shall have been instituted or shall be
imminently threatening to delay, restrain or prevent the
consummation of this Agreement or any material component
thereof.
Upon termination of this Agreement for any reason, in accordance with the
terms and conditions set forth in this paragraph, each said party shall bear all
costs and expenses as each party has incurred and no party shall be liable to
the other for such costs and expenses.
9. Exhibits. All Exhibits attached hereto are incorporated herein by this
reference as if they were set forth in their entirety.
10
10. Miscellaneous Provisions. This agreement is the entire agreement
between the parties in respect of the subject matter hereof, and there are no
other agreements, written or oral, nor may this Agreement be modified except in
writing and executed by all of the parties hereto. The failure to insist upon
strict compliance with any of the terms, covenants or conditions of this
Agreement shall not be deemed a waiver or relinquishment of such right or power
at any other time or times.
11. Closing. The Closing of the transactions contemplated by this Agreement
("Closing") shall take place at 1:00 P.M. on the first business day after the
latter of the Sellers approving this Agreement or the shareholders of AVE
approving this Agreement and the matters referred to in Section 7(b)(i), or such
other date as the parties hereto shall agree upon. At the Closing, all of the
documents and items referred to herein shall be exchanged.
12. Fees and Commission. As compensation for its services in initiating
this transaction and ongoing consulting services to AVE, AVE acknowledges and
agrees that 1,063,874 shares being issued hereunder are being issued under Rule
504 in cancellation of all debts owned to the Consultants for their services
rendered or otherwise arising out of this Agreement and the transactions
contemplated hereby. Pursuant to the Consulting Agreements attached hereto as
Exhibit "X", these shares are being issued to (a) Olympic Capital Group, Inc.
and its designees-205,000 shares; (b>) Xxxxx Xxxxxx-373,874 shares; (c) Xxxxxxx
Keohe-142,500; Xxxxx Xxxxx-142,500; and Kennington Investments Limited-200,000.
13. No Third Party Beneficiaries. The provisions of this Agreement are for
the exclusive benefit of the parties who are signatories hereto and their
permitted successors and assigns, and no third party shall be a beneficiary of,
or have any rights by virtue of, this Agreement.
14. Assignment: Binding Effect. This Agreement, including both its
obligations and benefits, shall redound to the benefit of, and be binding on the
respective permitted assigns, transferees and successors of the parties. This
Agreement may not be assigned or transferred in whole or in part by either party
without the prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed.
15. Non-Recourse. Notwithstanding anything contained in this Agreement to
the contrary, it is expressly understood and agreed by the parties hereto that
each and every representation, warranty, covenant, undertaking and agreement
made in this Agreement (except with respect to the Sellers) was not made nor
intended to be made as a personal representation, undertaking, warranty,
covenant, or agreement ton the part of any incorporator, stockholder, director,
officer, partner, employee or agent, past present or future, or any of them and
any recourse on account of any such representations, warranties, covenants,
undertakings or agreements made in this Agreement, whether in common law, in
equity, by statute or otherwise, against any of them (except with respect to the
Sellers) is hereby forever waived and released.
16. Material Adverse Effect. As used in this Agreement, "Material Adverse
Effect" with respect to a party means any change in or effect on, the business
conducted by such party that is, or is reasonably likely to be, materially
adverse to (i) the business results of operations, prospects or condition
(financial or otherwise) of such party and its Subsidiaries, taken
11
as a whole, or (ii) the assets and properties used or useful in the conduct of
the business of such party and its Subsidiaries, taken as a whole.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
18. Counterparts. This Agreement may be executed in duplicate facsimile
counterparts, each of which shall be deemed an original and together shall
constitute one and the same binding Agreement, with one counterpart being
delivered to each party hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the date and year above first written.
AVE, INC.
/s/ GENE KLAWETTES
----------------------------------------
DIGITAL MANUFACTURING, INC.
By: /s/ XXX XXXXXX
----------------------------------------
President
----------------------------------------
12
SELLERS:
/s/ XXX XXXXXX
----------------------------------------
----------------------------------------
----------------------------------------
