EXHIBIT 10.1
AGREEMENT AND PLAN OF REORGANIZATION
between
QPQ CORPORATION, a Florida corporation,
and
XXXXXX XXXX, XX. XXX XXXXXX AND XXXXX XXXXXXX,
the Shareholders
of
LATOR INTERNATIONAL, INC.,
a Florida corporation
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement"), made as of
the 8th day of October, 1997, between QPQ Corporation., a Florida corporation
("QPQ") and Xxxxxx Xxxx ("Xxxx") and Xx. Xxx Xxxxxx ("Xxxxxx"), being all of the
current shareholders of Lator International, Inc., a Florida corporation
("Lator"), and Xxxxx Xxxxxxx, members of his family or other family controlled
entities, including, but not limited to, Jennica Development, Ltd.
(collectively, "Zanette"), who shall become a shareholder of Lator pursuant to
the pending share exchange (the "Torland Share Exchange") between Lator and the
shareholders of 0000-0000 Xxxxxx Inc. d/b/a Torland ("Torland") as hereinafter
described. Xxxx, Xxxxxx and Xxxxxxx are sometimes hereinafter collectively
referred to as the "Shareholders."
WHEREAS, QPQ has authorized capital stock of 5,000,00 shares of common
stock, par value $.01 per share (the "QPQ Common Stock") of which 717,932 shares
have been duly issued and are now outstanding, and 1,000,000 shares of preferred
stock, par value $.01 per share, of which 300,000 shares have been designated as
Series A Preferred Stock, none of which are duly issued and outstanding. The
designations, rights and preferences of the Series A Preferred Stock (the "QPQ
Preferred Stock") are attached hereto as Exhibit A and incorporated herein by
such reference.
WHEREAS, Lator has authorized 1,000 shares of common stock, $1.00 par
value (the "Lator Common Stock"), of which 1,000 shares are issued and
outstanding. Of such issued and outstanding Lator Common Stock, 820 shares are
owned beneficially and of record by Xxxx and 140 shares are owned beneficially
and of record by Xxxxxx. Upon the closing of the Torland Share Exchange, Zanette
will be the beneficial and record owner of 40 shares of Lator Common Stock.
Lator has no other classes of capital stock authorized.
WHEREAS, QPQ desires to acquire 100% of the Lator Common Stock from the
Shareholders in exchange for a maximum of 300,000 shares of the QPQ Preferred
Stock pursuant to the terms and conditions set forth herein.
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WHEREAS, the Shareholders desire to exchange their shares in Lator for the
QPQ Preferred Stock pursuant to the terms and conditions set forth herein.
WHEREAS, the Board of Directors of QPQ deem it advisable and generally to
the advantage and welfare of QPQ's shareholders that the parties enter into this
Agreement pursuant to the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, it is agreed as follows:
1. RECITALS. The above recitals are true, correct and are herein
incorporated by reference.
2. PLAN OF REORGANIZATION. The Shareholders are currently, or will be
upon the closing of the Torland Share Exchange as hereinafter described in
Section 6 hereof, the owners of 100% of the issued and outstanding Lator Common
Stock, which such stock is the only capital stock of Lator. It is the intention
of the parties hereto that 100% of the Lator Common Stock shall be acquired by
QPQ, together with any and all other rights or interests either of the
Shareholders may have in or to Lator in addition to their stock ownership
therein, in exchange solely for a maximum of 300,000 shares of QPQ Preferred
Stock which is voting stock.
3. EXCHANGE OF SHARES.
a. Subject to the terms and conditions herein, the Shareholders hereby
agree that the Lator Common Stock shall be exchanged with QPQ for the QPQ
Preferred Stock at the closing of the transactions contemplated herein and QPQ
agrees to deliver to Xxxx a certificate representing 246,000 shares of the QPQ
Preferred Stock, to deliver to Xxxxxx a certificate representing 42,000 shares
of the QPQ Preferred Stock and to deposit in escrow pursuant to the provisions
of Section 6 hereof a certificate issued to Zanette representing 12,000 shares
of the QPQ Preferred Stock. The parties hereto acknowledge that it is the intent
that the transactions contemplated herein shall be tax free, pursuant to Section
368 of the Internal Revenue Code of 1986, as amended. The shares of the QPQ
Preferred Stock shall be issued in such name or names as may be requested by the
Shareholders.
b. As hereinafter set forth in Paragraph 6, the parties hereto
acknowledge that Lator is a party to that certain agreement with Torland, the
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terms and conditions of which provide that Lator is to acquire 100% of the
outstanding capital stock of Torland. In the event such transaction does not
close on or before December 31, 1997, the parties hereto covenant that they
shall mutually agree upon a number of shares of QPQ Preferred Stock which shall
have been issued to Xxxx and Xxxxxx pursuant to this Agreement to be returned by
Xxxx and Xxxxxx to the treasury of QPQ, giving effect to the total plan of
reorganization.
4. CLOSING DATE. The closing shall be held on October 8, 1997, 5 p.m.,
or such other date and time as may be agreed upon by QPQ and the Shareholders,
at the offices of QPQ. Notwithstanding the date on which the closing shall
occur, the parties agree the transactions contemplated hereby shall occur as of
October 8, 1997.
5. DELIVERY OF SHARES BY XXXX AND XXXXXX. Upon execution of this
Agreement, Xxxx and Xxxxxx will each deliver certificates for the Lator Common
Stock in the amounts set forth in Section 3 hereof, duly endorsed and with
documentary stamps affixed at their expense so as to make QPQ the sole owner
thereof, free and clear of all claims and encumbrances, and on the closing date
delivery of the certificates representing the QPQ Preferred Stock in the amounts
set forth in Section 3 hereof, on which documentary stamp taxes will have been
paid by QPQ, will be made to each of Xxxx and Xxxxxx. Time is of the essence.
6. ESCROW OF ZANETTE SHARES; TORLAND AGREEMENT.
a. The parties hereto acknowledge that Lator is a party to that certain
agreement with Torland, a copy of which is attached hereto as Exhibit B and
incorporated herein by such reference (the "Torland Agreement"). The terms of
the Torland Agreement provide that upon the satisfaction of certain conditions,
Zanette will be entitled to exchange 100% of the issued and outstanding common
shares of Torland, which shall the only class of Torland capital stock then
outstanding, for shares of Lator Common Stock.
b. Upon execution of this Agreement, and pursuant to the terms and
conditions of the Escrow Agreement attached hereto as Exhibit C and incorporated
herein by such reference, Zanette will deposit with Atlas, Xxxxxxxx, Trop &
Borkson, P.A., counsel for QPQ, a certificate representing 100 shares of the
Torland common stock, together with medallion guaranteed stock power and QPQ
shall likewise deposit with Atlas, Xxxxxxxx, Trop & Borkson, P.A. a certificate
representing 12,000 shares of QPQ Preferred Stock. Upon the closing of the
Torland Share Exchange upon terms and conditions as set forth in the Torland
Agreement, the shares of Torland common stock shall be transferred to Lator and
the certificate representing the 12,000 shares of QPQ Preferred Stock issued in
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the name of Zanette shall be delivered to Zanette. Upon such delivery, each
certificate shall make the record holder thereof the sole owner thereof, with
such shares free and clear of all claims and encumbrances. Time is of the
essence.
7. REPRESENTATIONS AND WARRANTIES OF THE XXXX AND XXXXXX. Xxxx and
Xxxxxx, jointly and severally, hereby make the following representations and
warranties to QPQ, each of which are true as of the date hereof and will be true
as of the closing date with the same effect as though such representations and
warranties had been made on the closing date:
(a) Xxxx and Xxxxxx are currently the sole shareholders of Lator and
there are no warrants, options or other rights outstanding to acquire any shares
of the capital stock of Lator, other than the shares of Lator Common Stock to be
issued to Zanette upon the closing of the Torland Share Exchange. The shares of
Lator Common Stock to be transferred by each of Xxxx and Xxxxxx to QPQ hereunder
are free and clear of all voting trusts, agreements, arrangements, encumbrances,
liens, claims, equities and liabilities of every nature and each of Xxxx and
Xxxxxx are conveying clear and unencumbered title thereto to QPQ. The shares of
Lator Common Stock owned of record and beneficially by each of Xxxx and Xxxxxx
are fully paid and non-assessable.
(b) Following the closing of the Torland Share Exchange, Zanette will be
the record and beneficial owner of Lator Common Stock, which such shares shall
be free and clear of all voting trusts, agreements, arrangements, encumbrances,
liens, claims, equities and liabilities of every nature and Zanette shall be
conveying clear and unencumbered title thereto to QPQ. The shares of Lator
Common Stock to be exchange by Zanette will be fully paid and non-assessable.
(c) This Agreement constitutes the valid and binding obligation of each
of Xxxx and Xxxxxx, enforceable against each of them in accordance with its
terms, except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors rights.
(d) Neither of Xxxx or Xxxxxx own, nor does either Xxxx or Xxxxxx know
of any other person, corporation or firm that owns any interest in any property,
invention, patent, patent application, copyright, trade secret, service xxxx or
trademark used by Lator relating to any product or process used by Lator or
relating in any way to its business except as may be set forth on Schedule 7(c)
attached hereto and incorporated herein by such reference. Lator owns or has the
rights to use all those rights presently necessary to the operation of its
businesses.
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(e) There are no agreements to which either Xxxx or Xxxxxx or Lator is a
party that in any way restrict or infringe upon the business of Lator or the
benefit of which Lator which it requires or presently has in its business, nor
do Xxxx or Xxxxxx know of any other agreements that in any way restrict or
infringe upon the business of Lator or the benefit of Lator presently has in its
business.
(f) The execution and delivery of this Agreement by Xxxx and Xxxxxx does
not, and the consummation of the transactions contemplated herein, will not
violate or constitute an occurrence of default (or an event which, with notice
or lapse of time or both would constitute a default) under any provision of, or
conflict with, or result in acceleration of any obligations under, or result in
the creation or imposition of any security interest, lien or other encumbrance,
or give rise to a right by any party to terminate its obligations under any
mortgage, deed of trust, conveyance to secured debt, note, loan, lien, lease,
agreement, instrument, order, judgment, decrees or other arrangement to which
Xxxx or Xxxxxx or Lator is a party or to which they or it is bound, except as
set forth on Schedule 7(e) attached hereto and incorporated herein by such
reference.
(g) Neither the execution nor the delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
terms hereof, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Articles of Incorporation or Bylaws of Lator as
amended, or any agreement or instrument to which Xxxx or Xxxxxx or Lator is now
a party.
(h) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated hereby will violate any
statue or law or any judgment, decree, order, award, regulation or rule of any
court, governmental authority or arbitration panel applicable to Xxxx or Xxxxxx
or Lator or give rise to the right of any termination by any governmental
authority of any license, registration, certificate, right of authority to
engage in business in such places were Lator now does or has a right to engage
in business.
(i) Xxxx and Xxxxxx have heretofore delivered to QPQ true and correct
copies of Lator's financial statements for the period ended September 30, 1997,
copies of which are attached hereto as Exhibit 7(i) and incorporated herein by
such reference. Such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied. Since September
30, 1997, Lator has (i) no short term or long term debt or other obligations
other than as set forth in such the financial statements, excluding trade
payables incurred in the ordinary course of business, (ii) no tax liens or
encumbrances of any nature on its assets, (iii) continued its operations and
business as they are presently conducted, (iv) entered into no employment,
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consulting or similar agreements, and (v) not issued or agreed to issue any
equity security or any other securities or obligations of Lator that are
convertible into or exchangeable for such equity securities, other than pursuant
to the Torland Agreement. Since September 30, 1997, there has not have been (i)
any material adverse change in the business, condition (financial or otherwise),
results of operation, prospects, properties, assets or liabilities of Lator,
(ii) any damage, destruction or loss (whether or not covered by insurance)
affecting Lator's properties, assets or business, (iii) any increase in the rate
of compensation or in bonus payments payable or to become payable to any of
Lator's salaried employees, or (iv) any other event or condition of any
character which may reasonably be expected to have an effect as described in
clauses (i) through (iii) of this Paragraph 7(i).
(j) Except for liability or obligations disclosed or provided for the in
the financial statements attached hereto as Exhibit 7(i), and except for
liability or obligations incurred in the ordinary course of business consistent
with past practices, Lator does not have any liabilities or obligations or any
nature, whether absolute, accrued, contingent, potential or unassented or
otherwise, that would be required to be disclosed on a balance sheet of Lator
prepared in accordance with generally accepted accounting principles,
consistency applied.
(k) Each of Xxxx and Xxxxxx are acquiring the QPQ Preferred Stock in a
private transaction exempt from registration under applicable federal and state
securities laws, for their own account and for investment and not with a view to
the distribution or resale of any thereof.
(l) Schedule 7(l) sets forth a complete list of all licenses and permits
from all governmental authorities (the "Licenses") used in the business of Lator
and such Licenses are all of the Licenses necessary to permit Lator to conduct
its business and operations as currently conducted. No License has been revoked,
is subject to revocation pursuant to a current regulatory review or has been
challenged or otherwise contested by any person, except for immaterial
deficiencies or other issues noted by regulatory review, challenge or contest
which are being corrected in the ordinary course of business without material
disruption or cost to Lator in respect of such License or business reasonable
related thereto.
(m) Each of Xxxx and Xxxxxx and Lator have complied in all material
respects with all federal, state, county and local laws, ordinances,
regulations, inspections, orders, judgements, injunctions, awards or decrees
applicable to Lator.
(n) There is no outstanding order, judgment, injunction, award or decree
of any court, governmental or regulatory body or arbitration tribunal against or
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involving Xxxx or Xxxxxx or Lator in respect of, or in connection with, Lator.
There is no action, suit, claim or legal, administrative or arbitration
proceeding, or, to the best knowledge of Xxxx or Xxxxxx after due inquiry, any
investigation (whether or not the defense or liabilities in respect thereof are
covered by insurance) pending, or to the best knowledge of Xxxx or Xxxxxx, after
due inquiry, threatened against or involving Lator or any or its assets. To the
best knowledge of Xxxx or Xxxxxx, after due inquiry, there is no fact, event or
circumstances that are likely to give rise to any suit, action, claim,
investigation or proceeds that would be required to be disclosed if currently
pending or threatened.
(o) Lator has good and valid title to all the properties and assets of
the type required to be reflected on a balance sheet attached hereto as Exhibit
7(i) which it purports to own and all such properties and assets are free and
clear of all title defects or objections, liens, claims, charges, security
interests or other encumbrances of any nature whatsoever.
(p) Lator has timely filed all tax returns and reports required to be
filed by it, including, where applicable, all federal, state, county and local
income, gross receipts, excise, import, property, franchise, ad valorem,
license, sales, use and withholding tax reports and returns. All returns are
true and correct. To the best of Xxxx and Xxxxxx and Lator's knowledge, there is
no basis for any additional claim or assessment.
(r) Lator currently maintain policies of property insurance that provide
coverage in kind and amount reasonably necessary to protect against the risks
inherent or associated with the operation of Lator. All insurance polices are in
full force and effect. There is not any state of facts and no event has occurred
forming the basis for any claim covered by a property, casualty, fidelity,
automobile, general liability, libel or slander, xxxxxxx'x compensation, health
insurance or reinsurance or excess polity that is not fully covered by insurance
or that may be expected to exceed the available limits of liability of the
applicable insurance policies, nor has any carried declined coverage or reserved
its rights to determine its liability to provide coverage to Lator with respect
to any claim or circumstance.
(s) Lator has complied in all material respect with all laws, including
applicable rules and regulations, or all applicable federal, state, local and
foreign governments and their respective agencies concerning the environment,
public health and safety and employee health and safety, and no complaint,
action, suit, proceeding, hearing, investigation, claim, demand or notice has
been filed or commenced against Lator alleging any failure to comply with any
such law or regulation, including, without limitation, any law of any government
or agency concerning release or threatened release of hazardous substances,
public health and safety or pollution or protection of the environment.
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8. REPRESENTATIONS OF ZANETTE.
(a) Following the closing of the Torland Share Exchange, Zanette will be
the record and beneficial owner of Lator Common Stock, which such shares shall
be free and clear of all voting trusts, agreements, arrangements, encumbrances,
liens, claims, equities and liabilities of every nature and Zanette shall be
conveying clear and unencumbered title thereto to QPQ. The shares of Lator
Common Stock to be exchange by Zanette will be fully paid and non-assessable.
(b) This Agreement constitutes the valid and binding obligation of
Zanette, enforceable against him in accordance with its terms, except that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors rights.
(c) The execution and delivery of this Agreement by Zanette does not,
and the consummation of the transactions contemplated herein, will not violate
or constitute an occurrence of default (or an event which, with notice or lapse
of time or both would constitute a default) under any provision of, or conflict
with, or result in acceleration of any obligations under, or result in the
creation or imposition of any security interest, lien or other encumbrance, or
give rise to a right by any party to terminate its obligations under any
mortgage, deed of trust, conveyance to secured debt, note, loan, lien, lease,
agreement, instrument, order, judgment, decrees or other arrangement to which
Zanette is a party or to which he is bound, except as set forth on Schedule 8(c)
attached hereto and incorporated herein by such reference.
(d) Zanette is acquiring the QPQ Preferred Stock in a private
transaction exempt from registration under applicable federal and state
securities laws, for his own account and for investment and not with a view to
the distribution or resale of any thereof.
9. REPRESENTATIONS OF QPQ. QPQ hereby makes the following
representations and warranties to the Shareholders, each of which is true as of
the date hereof and will be true as of the closing date with the same effect as
though such representations and warranties had been made on the closing date:
(a) QPQ is a corporation duly organized and existing under and by virtue
of the laws of the State of Florida, and is in good standing under the laws
thereof.
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(b) The QPQ Preferred Stock to be issued to the Shareholders hereunder
will, upon the issuance thereof, be duly and validly issued, fully paid and
nonassessable.
(c) This Agreement constitutes the valid and binding obligation of QPQ,
enforceable against it in accordance with its terms, except that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors rights.
(d) The execution and delivery of this Agreement by QPQ does not, and
the consummation of the transactions contemplated herein, will not violate or
constitute an occurrence of default (which violations or defaults either
singularly or in the aggregate would be considered material) under any provision
of, or conflict with, or result in acceleration of any obligations under, or
give rise to a right by any party to terminate its obligations under any
mortgage, deed of trust, conveyance to secured debt, note, loan, lien, lease,
agreement, instrument, order, judgment, decrees or other arrangement to which
QPQ is a party or to which it is bound.
(e) Neither the execution nor the delivery of this Agreement, nor the
consummation of the transaction herein contemplated, nor compliance with the
terms hereof, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Articles of Incorporation or Bylaws of QPQ as
amended, or any agreement or instrument to which QPQ is now a party.
(f) QPQ has heretofore delivered to the Shareholders true and correct
copies of its Annual Report on Form 10-KSB for the fiscal year ended December
31, 1996 and Quarterly Reports on Form 10-QSB for the three months ended March
31, 1997 and the six months ended June 30, 1997. Since June 30, 1997 there has
been no material adverse change in the condition, financial or otherwise, of
QPQ.
(g) QPQ is acquiring the Lator Common Stock in a private transaction
exempt from registration under applicable federal and state securities laws, for
its own account and for investment and not with a view to the distribution or
resale of any thereof.
(h) With respect to the execution by QPQ of that certain letter of
intent by and between QPQ and Xxxxxxxx Enterprises LLC ("Xxxxxxxx"), a copy of
which is attached hereto as Exhibit D and incorporated herein by such reference,
and the transactions contemplated thereby, QPQ represents its acknowledgment of
Lator's role in bringing the Xxxxxxxx deal to QPQ.
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10. CONDITIONS OF CLOSING. All of the obligations of the parties under
this Agreement are subject to the fulfillment, prior to or on the closing date
set forth in Section 4 of this Agreement, of each of the following conditions:
(a) Delivery by the Shareholders of the following:
(i) Certificates for the Lator Common Stock described in Sections
5 and 6 hereof, endorsed in blank;
(ii) A certificate of each of the Shareholders that all
representations and warranties made by him contained in Sections 7 and 8 of this
Agreement shall be true on and as of the closing date set forth in Section 4 of
this Agreement as though such representations and warranties were made at and as
of such date, and shall be true on and as of said closing date as though such
representations and warranties were made at and as of such date; and
(iii) The original corporate minute book of Lator, together with a
certificate of Xxxx stating that the contents thereof completely and accurately
represent all minutes of all meetings of the board of directors and shareholders
of Lator from the date of its incorporation until the closing date set forth in
Section 4 hereof.
(b) Delivery by QPQ of the following:
(i) Certificates for the QPQ Preferred Stock described in Sections
5 and 6 hereof; and
(ii) A certificate of QPQ that all representations and warranties
made by it contained in Section 9 of this Agreement shall be true on and as of
the closing date set forth in Section 4 of this Agreement as though such
representations and warranties were made at and as of such date, and shall be
true on and as of said closing date as though such representations and
warranties were made at and as of such date.
11. INVESTMENT PURPOSE. Each of the Shareholders represents and warrants
that he is acquiring the QPQ Preferred Stock to be delivered upon the execution
of this Agreement solely for investment purposes and not for distribution or
resale. Sales of such stock may be made only as permitted by Rule 145(d) of the
Securities Act of 1933, as amended (the "Act"). Each of the Shareholders
acknowledge that he has been advised by QPQ that neither the QPQ Preferred
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Stock, nor the shares of QPQ common stock issuable upon the conversion of the
QPQ Preferred Stock, has been registered under the Act and that QPQ has no
obligation or intention to so register.
12. REPRESENTATIONS TO SURVIVE CLOSING. All the terms, conditions,
warranties, representations and guarantees contained in this Agreement shall
survive delivery of the shares of Lator Common Stock transferred as the closing
hereunder and any investigations made by or on behalf of QPQ at any time.
13. INDEMNIFICATION.
(a) Each of Xxxx and Xxxxxx agrees to indemnify, defend and hold
QPQ and Lator, their shareholders, officers, directors, successors and assigns,
harmless from and against any and all claims, damages, liability, loss, cost or
expense, which Lator or QPQ may suffer or become liable for as a result of or in
connection with:
(i) any breach of any representation or warranty, covenant
or agreement made or contained in this Agreement or in any related agreement or
instruments executed and delivered pursuant to this Agreement on or prior to the
closing date set for in Section 4 hereof (the "Representations"); or
(ii) all liabilities or obligations of Lator of any nature
(including, but not limited to, taxes) arising from any act (or failure to act)
by Lator on or before the closing date of this Agreement as set forth in Section
4 hereof, or any facts or conditions in existence on or before such closing
date, whether absolute, accrued, contingent, potential, unassented or otherwise,
unknown or undisclosed to QPQ and which are not set forth on Schedule 13
attached hereto and incorporated herein by such reference (the "Deficiencies").
(b) Zanette agrees to indemnify, defend and hold QPQ and Lator,
their shareholders, officers, directors, successors and assists, harmless from
and against any and all claims, damages, liability, loss, cost or expense, which
Lator or QPQ may suffer or become liable for as a result of or in connection
with any breach by Zanette of any representation or warranty, covenant or
agreement made by Zanette in this Agreement or in any related agreement or
instruments executed and delivered by Zanette pursuant to this Agreement on or
prior to the closing date set for in Section 4 hereof (the "Representations").
(c) Within 60 days after learning of the assertion by a third
party of any claim against which either Lator or QPQ claims indemnification
under this Agreement, Lator or QPQ shall notify the Shareholders and afford them
the opportunity to assume the defense or settlement thereof at his own expense
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with counsel of his own choosing and Lator and QPQ shall cooperate fully to make
available to the Shareholders all pertinent information under their control or
in their possession. Lator and QPQ shall have the right to join in the defense
of any claim with the counsel of their own choosing and at their own expense.
(d) Notwithstanding the notice requirements provided hereunder,
the right to indemnification under this Agreement shall not be effected by any
failure to give or any delay in giving notice unless, and then only to the
extent that, the rights and remedies of the party to whom notice was to have
been given shall have been prejudiced.
(e) Notwithstanding anything herein to the contrary, in order to
protect the business or their customers, Lator and QPQ shall desire to settle
any claims or actions, the defense of which the Shareholders would otherwise be
entitled to assume pursuant to the provisions of this Agreement, Lator or QPQ
shall be entitled to settle the claim or action and the proposed settlement, and
the terms of such settlement shall be binding upon the Shareholders so long as
they are commercially and reasonably measured in the context of the manner
settled and not in respect of other considerations of Lator or QPQ.
(f) Notwithstanding anything to the contrary contained in this
Agreement, Lator and QPQ shall be entitled to exercise and resort to all rights
and remedies for misrepresentations or breached afforded to them by statute, at
law or in equity, including without limitation, recision, specific performance,
action for damages, or any other remedies and relief as may be afforded to Lator
and QPQ under this Agreement or by a court of competent jurisdiction.
14. MISCELLANEOUS.
(a) Each of the parties hereto will bear its own legal fees and
other expenses in connection with the transactions contemplated by this
Agreement.
(b) If any term or provision of this Agreement or any exhibits
thereto or the application thereof to any person, property or circumstances
shall to any extent be invalid or unenforceable, the remainder of this Agreement
or the exhibits thereto or the application or such term or provision to person,
property or circumstances other than those as to which it is invalid and
unenforceable shall not be affected thereby, and each term and provision of this
Agreement or the exhibits thereto shall be valid and enforced to the fullest
extent permitted by law.
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(c) Any notices, requests or consents hereunder shall be deemed
given, and any instruments delivered, two days after they have been mailed by
first class mail, postage prepaid, or upon receipt if delivered personally or by
facsimile transmission, as follows:
If to QPQ: 0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: C. Xxxxxxxx Xxxxxxxx, President
With a copy to: Atlas, Xxxxxxxx, Trop & Borkson, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Shareholders: 0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxxx & Claire, P.A.
0000 X. Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
and Xxxxxxx X. Xxxx, Esq.
Xxxxx Xxxxx Xxxx
00 Xxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx XXX0X0
except that any of the foregoing may from time to time by written notice to the
other designate another address which shall thereupon become its effective
address for the purposes of this paragraph.
(d) This Agreement, including the exhibits and documents referred
to herein which are a part hereof, contain the entire understanding of the
parties hereto with respect to the subject matter and may be amended only by a
written instrument executed by the parties hereto or their successors or
assigns. Any paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(e) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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(f) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors but shall not inure to
the benefit of anyone other than the parties signing this Agreement and their
respective successors.
(g) This Agreement shall be governed by the laws of the State of
Florida.
(h) The parties have either (i) been represented by independent
legal counsel in connection with the negotiations and execution of this
Agreement, or (ii) each has had the opportunity to obtain independent legal
counsel, has been advised that it is in their best interests to do so and by
execution of this Agreement has waive the right.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
QPQ Corporation
By:
------------------------------
C. Xxxxxxxx Xxxxxxxx,
President
---------------------------------
Xxxxxx Xxxx
---------------------------------
Xx. Xxx Xxxxxx
---------------------------------
Xxxxx Xxxxxxx
14
