15
Agreement and Plan of Reorganization
This Agreement and Plan of Reorganization (hereinafter the "Agreement") is
entered into effective as of this December 24, 2003, by and among Utah Clay
Technology, Inc., a Utah corporation (hereinafter "UCT"); NeWave, Inc., D.B.A.
Online Supplier, a Nevada corporation (hereinafter "NeWave"), and the owners of
the outstanding shares of common stock of NeWave, Inc. (hereinafter the
Shareholders of NeWave") and Dutchess Advisors Ltd., a New York corporation and
its affiliates (herein collectively "Dutchess").
WHEREAS, the NeWave Shareholders own all of the issued and outstanding common
stock of NeWave (the "NeWave Common Stock") and UCT desires to acquire the
NeWave Common Stock and $150,000 in exchange for voting common stock of UCT and
the release of all outstanding debt of UCT with the exception of debt related to
certain convertible debentures of UCT issued in November and December 2001,
making NeWave a wholly-owned subsidiary of UCT; and
WHEREAS, the NeWave Shareholders (as set forth on Exhibit "A" to be delivered on
or before Closing) desire to acquire voting common stock of UCT in exchange for
the NeWave Common Stock and $150,000, as more fully set forth herein;
NOW THEREFORE, for the mutual consideration set out herein and other good and
valuable consideration, the legal sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Plan of Reorganization
It is hereby agreed that all the issued and outstanding capital stock of NeWave
shall be acquired by UCT in exchange solely for UCT Class C Convertible
Preferred Stock (the "UCT Shares") and $150,000 cash. It is the intention of the
parties hereto that this entire transaction qualify as a corporate
reorganization under Section 368(a)(1)(B) and/or Section 351 of the Internal
Revenue Code of 1986, as amended, and related or other applicable sections
thereunder.
2. Exchange of Shares
UCT and NeWave Shareholders agree that on the Closing Date or at the Closing as
hereinafter defined, the NeWave Common Stock shall be delivered to UCT in
exchange for the UCT Shares, which shares are convertible into 9,500,000 shares
of UTC common stock after giving effect to a planned reverse stock split that
will result in there being 500,000 shares of UCT common stock outstanding (the
"UCT Reverse Stock Split") with regard to all shares of UCT common stock
outstanding prior to the reverse stock split, as follows:
(a) At Closing, UCT shall, subject to the conditions set forth herein, issue an
aggregate of 94 shares of UCT Series C Preferred stock for immediate delivery to
the NeWave Shareholders in exchange for NeWave Shares and 1 share of UTC Series
C Preferred stock for immediate delivery to Dutchess and/or its designees as
consideration for its $250,000 investment required to satisfy the terms and
conditions of the Agreement.
(b) Each NeWave Shareholder shall execute this Agreement or a written consent to
the exchange of their NeWave Common Stock for UCT Shares.
3. Pre-Closing Events
The Closing is subject to the completion of the following:
(a) UCT shall have authorized 300 million shares of $0.001 par value common
stock and on or before Closing shall have obtained the approval of its
shareholders to the UCT Reverse Stock Split and to the renaming of the
corporation to "NeWave, Inc."
(b) UCT shall effectuate the UCT Reverse Stock Split as soon as possible after
the Closing, after which there shall be 500,000 shares of its common stock
issued and outstanding and 95 shares of Series C Preferred Stock issued and
outstanding and no other shares of capital stock issued or outstanding. The
conversion of the Series C Preferred Stock into shares of common stock of UCT
shall then take place immediately, and the shares of Series C Preferred Stock
shall be returned to authorized and unissued shares status.
(c) UCT shall demonstrate to the reasonable satisfaction of NeWave that it has
no material assets and no liabilities contingent or fixed other than those
disclosed on Exhibit "B" attached hereto.
(d) UCT shall transfer to Utah Kaolin LLC, a Utah limited liability company
owned by UCT's management, $150,000 cash to be paid by NeWave as follows -
$5,000 at the time of execution of this Agreement, $95,000 at the Closing, and
$50,000 escrowed with Utah Kaolin LLC's attorney, Xxxxxx X. Xxxxx of Oklahoma
City, under the following terms: $25,000 to be released from escrow three months
after the date of Closing and the remaining $25,000 released six months after
the date of Closing; provided, however, that if three months after the date of
Closing NeWave's management has received no indication that there exist
pre-Closing liabilities or contingent liabilities of UCT that were unpaid or not
released at Closing, then the full $50,000 in escrow may be released and paid to
Utah Kaolin LLC at that time. As consideration for this $150,000, Utah Kaolin
LLC will obtain the release of and transfer to Utah Kaolin LLC, or will pay,
approximately $598,554 of liabilities of UCT, which amount UCT represents all
liabilities of UCT except those pertaining to $165,000 face amount of
outstanding convertible debentures of UCT.
(e) All shares of common stock of UCT owned of record or beneficially by members
of the Xxxx families, the Xxxxxx Xxxxxxxx family and the Xxxxxx Xxxxx family
(the "Insiders") shall be subjected to a lockup agreement for a period of nine
months after the closing; provided, however, (i) that no shares shall be locked
up of an Insider that owns 200 shares or less after giving effect to the UCT
Reverse Stock Split, and (ii) from time to time, depending upon market
conditions and upon agreement between the parties, shares may be released from
the lockup and available for immediate sale into the stock market.
4. Exchange of Securities
As of the Closing Date each of the following shall occur:
(a) All outstanding shares of NeWave Common Stock shall be deemed, after
Closing, to be owned by UCT. The holders of such certificates previously
evidencing shares of NeWave Common Stock outstanding immediately prior to the
Closing Date shall cease to have any rights with respect to such shares of
NeWave Common Stock except as otherwise provided herein or by law;
(b) Any shares of NeWave Common Stock held in the treasury of NeWave immediately
prior to the Closing Date shall automatically be canceled and extinguished
without any conversion thereof and no payment shall be made with respect
thereto;
(c) The shares of UCT common stock previously issued and outstanding prior to
the Closing, after giving effect to the UCT Reverse Stock Split, will remain
outstanding; and
(d) NeWave will deliver to Utah Kaolin, LLC, in the manner described in
paragraph 3 (d) above, the balance of its $150,000 obligation to Utah Kaolin,
LLC.
5. Other Events Occurring at Closing
At closing, the following shall be accomplished:
(a) UCT shall file an amendment to its Articles of Incorporation with the
Secretary of State of the State of Utah in substantially the form attached
hereto as Exhibit "C" effecting an amendment to its Articles of Incorporation to
reflect the creation of the Class C Convertible Preferred Stock.
(b) The resignation of the existing UCT officers and directors and appointment
of new officers and directors as directed by NeWave.
6. Delivery of Shares
On or as soon as practicable after the Closing Date, NeWave will use its best
efforts to cause the NeWave Shareholders to surrender certificates for
cancellation representing their shares of NeWave Common Stock, against delivery
of certificates representing the UCT Shares for which the shares of NeWave
Common Stock are to be exchanged at Closing.
7. Representations of NeWave Shareholders
Each NeWave Shareholder hereby represents and warrants each only as to its own
NeWave Common Stock, effective this date and the Closing Date as follows:
(a) Except as may be noted in Exhibit "D", the NeWave Common Stock is free from
claims, liens, or other encumbrances, and at the Closing Date said NeWave
Shareholder will have good title and the unqualified right to transfer and
dispose of such NeWave Common Stock,
(b) Said NeWave Shareholder is the sole owner of the issued and outstanding
NeWave Common Stock as set forth in Exhibit "D";
(c) Said NeWave Shareholder has no present intent to sell or dispose of the UCT
Shares and is not under a binding obligation, formal commitment, or existing
plan to sell or otherwise dispose of the UCT Shares.
8. Representations of NeWave
NeWave hereby represents and warrants as follows, which warranties and
representations shall also be true as of the Closing Date:
(a) Except as noted on Exhibit "D", the NeWave Shareholders listed on the
attached Exhibit "D" are the sole owners of record and beneficially of the
issued and outstanding common stock of NeWave.
(b) NeWave has no outstanding or authorized capital stock, warrants, options or
convertible securities other than as described in the NeWave Financial
Statements or on Exhibit "E", attached hereto.
(c) The unaudited financial statements for the period ended November 30, 2003,
which have been delivered to UCT (hereinafter referred to as the " NeWave
Financial Statements") are complete and accurate and fairly present the
financial condition of NeWave as of the dates thereof and the results of its
operations for the periods covered. There are no material liabilities or
obligations, either fixed or contingent, not disclosed in the NeWave Financial
Statements or in any exhibit thereto or notes thereto other than contracts or
obligations in the ordinary course of business; and no such contracts or
obligations in the ordinary course of business constitute liens or other
liabilities which materially alter the financial condition of NeWave as
reflected in the NeWave Financial Statements. NeWave has good title to all
assets shown on the NeWave Financial Statements subject only to dispositions and
other transactions in the ordinary course of business, the disclosures set forth
herein and liens and encumbrances of record. The NeWave Financial Statements
have been prepared in accordance with generally accepted accounting principles
consistently applied (except as may be indicated therein or in the notes
thereto) and fairly present the financial position of NeWave as of the dates
thereof and the results of its operations and changes in financial position for
the periods then ended.
(d) Since the date of the NeWave Financial Statements, there has not been any
material adverse changes in the financial position of NeWave except changes
arising in the ordinary course of business, which changes will in no event
materially and adversely affect the financial position of NeWave.
(e) NeWave is not a party to any material pending litigation or, to its best
knowledge, any governmental investigation or proceeding, not reflected in the
NeWave Financial Statements, and to its best knowledge, no material litigation,
claims, assessments or any governmental proceedings are threatened against
NeWave.
(f) NeWave is in good standing in its jurisdiction of incorporation, and is in
good standing and duly qualified, to do business in each jurisdiction where
required to be so qualified except where the failure to so qualify would have no
material negative impact on NeWave.
(g) NeWave has (or, by the Closing Date, will have flied) all material tax,
governmental and/or related forms and reports (or extensions thereof) due or
required to be filed and has (or will have) paid or made adequate provisions for
all taxes or assessments which have become due as of the Closing Date.
(h) NeWave has not materially breached any material agreement to which it is a
party. NeWave has previously given UCT copies or access thereto of all material
contracts, commitments and/or agreements to which NeWave is a party including
all relationships or dealings with related parties or affiliates.
(i) NeWave has no subsidiary corporations except as described in writing to UCT.
(j) NeWave has made all material corporate financial records, minute books, and
other corporate documents and records available for review to present management
of UCT prior to the Closing Date, during reasonable business hours and on
reasonable notice.
(k) The execution of this Agreement does not materially violate or breach any
material agreement or contract to which NeWave is a party and has been duly
authorized by all appropriate and necessary corporate action under the law of
the State of Nevada or other applicable law and NeWave, to the extent required,
has obtained all necessary approvals or consents required by any agreement to
which NeWave is a party.
(l) All disclosure information regarding NeWave, which is to be set forth in
disclosure documents of UCT or otherwise delivered to UCT by NeWave, for use in
connection with the transaction (the "Acquisition") described herein is true,
complete and accurate in all material respects.
(m) NeWave shall prepare and timely file with the Securities and Exchange
Commission one or more Forms 8-K, which shall report the consummation of the
transactions described herein and include the financial statements and financial
information of NeWave as required by Item 310 of the Commission's Regulation S-B
9. Representations of UCT
UCT, to the best of its knowledge, hereby represents and warrants as follows,
each of which representations and warranties shall continue to be true as of the
Closing Date:
(a) As of the Closing Date, the UCT Shares, to be issued and delivered to the
NeWave Shareholders hereunder will, when so issued and delivered, constitute,
duly authorized, validly and legally issued shares of UCT Series C Convertible
Preferred Stock, fully-paid and non-assessable. UCT shall have authorized, but
cannot effectuate its Reverse Stock Split until ten days elapse after UCT gives
written notice to its shareholders that the holders of a majority of the
outstanding shares have given their written consent to the Reverse Stock Split
and the change of name of the corporation to "NeWave, Inc. Upon the
effectuation of the Reverse Stock Split, all outstanding shares of UCT common
stock before the Reverse Stock Split shall be consolidated down to 500,000
shares, and the UCT shares of Class C Convertible Preferred Stock shall then be
converted to 9,500,000 shares of common stock
(b) UCT has the corporate power to enter into this Agreement and to perform its
respective obligations hereunder. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the board of directors of UCT. The execution and performance of
this Agreement will not constitute a material breach of any agreement,
indenture, mortgage, license or other instrument or document to which UCT is a
party and will not violate any judgment, decree, order, writ, rule, statute, or
regulation applicable to UCT or its properties. The execution and performance of
this Agreement will not violate or conflict with any provision of the Articles
of Incorporation or by-laws of UCT.
(c) UCT has delivered to NeWave (or shall deliver prior to Closing) a true and
complete copy of its audited financial statements for the years ended December
31, 2000, December 31, 2001, and December 2002 and its unaudited interim
financial statements for the interim period ended September 30,2003 (the "UCT
Financial Statements"), all of which shall have been prepared in accordance with
Item 310 of the SEC's Regulation S-B. The UCT Financial Statements are complete,
accurate and fairly present the financial condition of UCT as of the dates
thereof and the results of its operations for the periods then ended. There are
no material liabilities or obligations either fixed or contingent not reflected
therein. The UCT Financial Statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis (except
as may be indicated therein or in the notes thereto) and fairly present the
financial position of UCT as of the dates thereof and the results of its
operations and changes in financial position for the periods then ended.
(d) Since September 30, 2003, there have not been any material adverse changes
in the financial condition of UCT except with regard to disbursements to pay
reasonable and ordinary expenses in connection with maintaining its corporate
status and pursuing the matters contemplated in this Agreement. Prior to
Closing, all accounts payable and other liabilities of UCT shall be paid and
satisfied in full or released in writing with the exception of the principal and
interest owed with regard to $165,000 face amount of UCT convertible debentures
issued in November and December 2001, and UCT shall have no other liabilities
either contingent or fixed.
(e) UCT is not a party to or the subject of any pending litigation, claims, or
governmental investigation or proceeding not reflected in the UCT Financial
Statements or otherwise disclosed herein, and there are no lawsuits, claims,
assessments, investigations, or similar matters, to the best knowledge of UTC,
threatened or contemplated against or UCT, its management or its properties
other than litigation of an unknown character threatened by holders of several
of the convertible debentures issued in November and December 2001.
(f) UCT is duly organized, validly existing and in good standing under the laws
of the State of Utah; has the corporate power to own its property and to carry
on its business as now being conducted and is duly qualified to do business in
any jurisdiction where so required except where the failure to so qualify would
have no material negative impact on it.
(g) UCT has filed all federal, state, county and local income, excise, property
and other tax, governmental and/or related returns, forms, or reports, which are
due or required to be filed by it prior to the date hereof, except where the
failure to do so would have no material adverse impact on UCT, and has paid or
made adequate provision in the UCT Financial Statements for the payment of all
taxes, fees, or assessments which have or may become due pursuant to such
returns or pursuant to any assessments received. UCT is not delinquent or
obligated for any tax, penalty, interest, delinquency or charge.
(h) There are no existing options, calls, warrants, preemptive rights or
commitments of any character relating to the issued or unissued capital stock or
other securities of UCT, except with regard to this Agreement and as
contemplated in this Agreement.
(i) The corporate financial records, minute books, and other documents and
records of UCT have been made available to NeWave prior to the Closing and shall
be delivered to new management of UCT at Closing.
(j) UCT has not breached, nor is there any pending, or to the knowledge of
management, other than as set forth in Paragraph 9 (e) above any threatened
claim that UCT has breached any of the terms or conditions of any agreements,
contracts or commitments to which it is a party or by which it or its assets are
is bound. The execution and performance hereof will not violate any provisions
of applicable law or any agreement to which UCT is subject. UCT hereby
represents that it has no business operations or material assets and it is not a
party to any material contract or commitment other than appointment documents
with its transfer agent, and that it has disclosed to NeWave all relationships
or dealings with related parties or affiliates.
(k) UCT common stock is currently approved for quotation on the OTC Bulletin
Board under the symbol "UTCL" and there are no stop orders in effect with
respect thereto.
(l) All information regarding UCT which has been provided to NeWave or otherwise
disclosed in connection with the transactions contemplated herein is true,
complete and accurate in all material respects. UCT specifically disclaims any
responsibility regarding disclosures as NeWave, its business or its financial
condition.
10. Closing
The Closing of the transactions contemplated herein shall take place on such
date (the "Closing") as mutually determined by the parties hereto when all
conditions precedent have been met and all required documents have been
delivered, which Closing is expected to take place on or about January 9, 2004,
but no later than January 31, 2004 , unless extended by mutual consent of all
parties hereto. The "Closing Date" of the transactions described herein (the
"Acquisition"), shall be that date on which all conditions set forth herein have
been met and the UCT Shares are issued in exchange for the NeWave Common Stock.
11. Conditions Precedent to Obligations of NeWave
All obligations of NeWave under this Agreement are subject to the fulfillment,
prior to or as of the Closing and/or the Closing Date, as indicated below, of
each of the following conditions:
(a) The representations and warranties by or on behalf of UCT contained in this
Agreement or in any certificate or document delivered pursuant to the provisions
hereof shall be true in all material respects at and as of the Closing and
Closing Date as though such representations and warranties were made at and as
of such time.
(b) UCT shall have performed and complied with all covenants, agreements, and
conditions set forth in, and shall have executed and delivered all documents
required by this Agreement to be performed or complied with or executed and
delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and shareholders
representing a majority interest of the outstanding common stock UCT, shall have
approved in accordance with applicable state corporation law the execution and
delivery of this Agreement and the consummation of the transactions contemplated
herein.
(d) On or before the Closing Date, UCT shall have delivered to NeWave certified
copies of resolutions of the board of directors and shareholders of UCT
approving and authorizing the execution, delivery and performance of this
Agreement and authorizing all of the necessary and proper action to enable UCT
to comply with the terms of this Agreement including the election of NeWave's
nominees to the Board of Directors of UCT and all matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and UCT shall have
sufficient shares of its capital stock authorized to complete the Acquisition.
(f) At Closing, the officers and directors of UCT shall have resigned in writing
from all positions as directors and officers of UCT effective upon the election
and appointment of the NeWave nominees.
(g) At the Closing, all instruments and documents delivered to NeWave and NeWave
Shareholders pursuant to the provisions hereof shall be reasonably satisfactory
to legal counsel for NeWave.
(h) The shares of restricted UCT capital stock to be issued to NeWave
Shareholders at Closing will be validly issued, non-assessable and fully-paid
under Nevada corporation law and will be issued in compliance with all federal,
state and applicable corporation and securities laws.
(i) NeWave and NeWave Shareholders shall have received the advice of their tax
advisor, if deemed necessary by them, as to all tax aspects of the Acquisition.
(j) UTC shall have received all necessary and required approvals and consents
from required parties and its shareholders.
(l) At the Closing, UCT shall have delivered to NeWave an opinion of its counsel
dated as of the Closing to the effect that:
(i) UCT is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation;
(ii) This Agreement has been duly authorized, executed and delivered by UCT and
is a valid and binding obligation of UCT enforceable in accordance with its
terms;
(iii) UCT through its board of directors and shareholders has taken all
corporate action necessary for performance under this Agreement;
(iv) The documents executed and delivered by UCT to NeWave and NeWave
Shareholders hereunder are valid and binding in accordance with their terms and
vest in NeWave Shareholders, as the case may be, all right, title and interest
in and to the UCT Shares to be issued pursuant to the terms hereof, and the UCT
Shares when issued will be duly and validly issued, fully-paid and
non-assessable;
(v) UCT has the corporate power to execute, deliver and perform under this
Agreement;
(vi) Legal counsel of UCT is not aware of any liabilities, claims or lawsuits
involving UCT except those di12. Conditions Precedent to Obligations of UCT.
All obligations of UCT under this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions:
(a) The representations and warranties by NeWave and NeWave Shareholders
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time.
(b) NeWave shall have performed and complied with, in all material respects, all
covenants, agreements, and conditions required by this Agreement to be performed
or complied with by it prior to or at the Closing;
(c) NeWave shall deliver on behalf of the NeWave Shareholders a letter commonly
known as an "Investment Letter," signed by each of said shareholders, in
substantially the form attached hereto as Exhibit "G", acknowledging that the
UCT Shares are being acquired for investment purposes.
(d) NeWave shall deliver an opinion of its legal counsel to the effect that:
(i) NeWave is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and is duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material adverse impact on NeWave;
(ii) This Agreement has been duly authorized, executed and delivered by NeWave.
(iii) The documents executed and delivered by NeWave and NeWave Shareholders to
UCT hereunder are valid and binding in accordance with their terms and vest in
UCT all right, title and interest in and to the NeWave Common Stock, which stock
is duly and validly issued, fully-paid and non-assessable, and is all the
outstanding common stock of NeWave.
13. Indemnification
At all times after the date of this Agreement , UCT and Utah Kaolin LLC agree to
indemnify and hold harmless NeWave, and NeWave agrees to indemnify and hold
harmless UCT and Utah Kaolin LLC, at all times after the date of this Agreement
against and in respect of any liability, damage or deficiency, all actions,
suits, proceedings, demands, assessments, judgments, costs and expenses
including attorney's fees incident to any of the foregoing, resulting from any
material misrepresentations made by an indemnifying party to an indemnified
party, an indemnifying party's breach of covenant or warranty or an indemnifying
party's non-fulfillment of any agreement hereunder, or from any material
misrepresentation in or omission from any certificate furnished or to be
furnished hereunder.
14. Nature and Survival of Representations
All representations, warranties and covenants made by any party in this
Agreement shall survive the Closing and the consummation of the transactions
contemplated hereby for one year from the Closing. All of the parties hereto are
executing and carrying out the provisions of this Agreement in reliance solely
on the representations, warranties and covenants and agreements contained in
this Agreement and not upon any investigation upon which it might have made or
any representation, warranty, agreement, promise or information, written or
oral, made by the other parry or any other person other than as specifically set
forth herein.
15. Documents at Closing
At the Closing, the following documents shall be delivered:
15.1 NeWave's Deliveries
NeWave will deliver, or will cause to be delivered, to UCT the following:
(a) A certificate executed by the President and Secretary of NeWave to the
effect that all representations and warranties made by NeWave under this
Agreement are true and correct as of the Closing, the same as though originally
given to UCT on said date;
(b) A certificate from the jurisdiction of incorporation of NeWave dated at or
about the Closing to the effect that NeWave is in good standing under the laws
of said jurisdiction;
(c) Investment Letters in the form attached hereto as Exhibit "G" executed by
each NeWave Shareholder;
(d) Such other instruments, documents and certificates, if any, as are required
to be delivered pursuant to the provisions of this Agreement;
(e) Certified copies of resolutions adopted by the shareholders and directors of
NeWave authorizing this transaction;
(f) The legal opinion required by Section 12(d) hereof; and
(g) All other items, the delivery of which is a condition precedent to the
obligations of UCT as set forth herein.
15.2 UCT's Deliveries
UCT will deliver or cause to be delivered to NeWave:
(a) Stock certificates representing the UCT Shares to be issued as a part of the
stock exchange as described herein;
(b) A certificate of the President of UCT, to the effect that all
representations and warranties of UCT made under this Agreement are true and
correct as of the Closing, the same as though originally given to NeWave on said
date;
(c) Certified copies of resolutions adopted by UCT's board of directors and
UCT's Shareholders authorizing the Acquisition and all related matters described
herein;
(d) Certificate from the jurisdiction of incorporation of UCT dated at or about
the Closing Date that UCT is in good standing under the laws of said state;
(e) Opinion of UCT's counsel as described in Section 11.9 above;
(f) Such other instruments and documents as are required to be delivered
pursuant to the provisions of this Agreement;
(g) Resignations of the existing officers and directors of UCT;
(h) All corporate and financial records of UCT;
(i) Executed copies of settlement and release agreements from the creditors as
set forth in Exhibit "H" attached hereto; and
(j) All other items, the delivery of which is a condition precedent to the
obligations of NeWave, as set forth in Section 12 hereof.
16. Finder's Fees
UCT, represents and warrants to NeWave, and NeWave represents and warrants to
UCT that neither of them, or any party acting on their behalf, has incurred any
liabilities, either express or implied, to any "broker" of "finder" or similar
person in connection with this Agreement or any of the transactions contemplated
hereby. In this regard, UCT and Utah Kaolin LLC, on the one hand, and NeWave on
the other hand, will indemnify and hold the other harmless from any claim, loss,
cost or expense whatsoever (including reasonable fees and disbursements of
counsel) from or relating to any such express or implied liability other than as
disclosed herein.
17. Miscellaneous
17.1 Further Assurances
At any time, and from time to time, after the Closing Date, each party will
execute such additional instruments and take such action as may be reasonably
requested by the other party to confirm or perfect title to any property
transferred hereunder or otherwise to carry out the intent and purposes of this
Agreement.
17.2 Waiver
Any failure on the part of any party hereto to comply with any of its
obligations, agreements or conditions hereunder may be waived in writing by the
party to whom such compliance is owed.
17.3 Amendment
This Agreement may be amended only in writing as agreed to by all parties
hereto.
17.4 Notices
All notices and other communications hereunder shall be in writing and shall be
deemed to have been given if delivered in person or sent by prepaid first class
registered or certified mail, return receipt requested.
17.5 Headings
The section and subsection headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
17.6 Counterparts
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.
17.7 Governing Law
This Agreement shall be construed and enforced in accordance with the laws of
the State of Utah.
17.8 Binding Effect
This Agreement shall be binding upon the parties hereto and inure to the benefit
of the parties, their respective heirs, administrators, executors, successors
and assigns.
17.9 Entire Agreement
This Agreement and the attached Exhibits constitute the entire agreement of the
parties covering everything agreed upon or understood in the transaction. There
are no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements to the
execution hereof.
17.10 Time
Time is of the essence.
17.11 Severability
If any part of this Agreement is deemed to be unenforceable the balance of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
UTAH CLAY TECHNOLOGY, INC.
By :/s/ Xxxxxx Xxxx
--------------------
Name: Xxxxxx Xxxx
Title: President
NEWAVE, INC. D.B.A. ONLINE SUPPLIER, INC.
By: /s/ Xxxxxxx Xxxx
-----------------------
Name: __Michael Hill
Title: CEO
DUTCHESS ADVISORS, LTD.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
