EXHIBIT 2.2 ASSIGNMENT OF CONTRACT
ASSIGNMENT OF CONTRACT
This Assignment of Contract (the "Assignment") is executed as of
this 9th day of October, 2003, by and among Xxxxxxxx Street Capital,
LLC, a Delaware limited liability company ("Assignor"), Xxxxxxxxx
Holding, Inc., a Delaware corporation ("Holding") and Xxxxxxxxx
Springs, LLC, a Virginia limited liability company ("SSLLC" and,
together with Holding, "Assignees").
RECITALS
A. Assignor has entered into that certain Purchase and Sale
Agreement dated as of June 7, 2003, as subsequently amended (the
"PSA") between Xxxxx Xxxxxxxxx Corporation as Seller and Assignor as
Purchaser;
B. Assignor wishes to assign its rights and obligations under
the PSA, and Assignees wish to assume Assignor's rights and
obligations under the PSA for the consideration set forth herein; and
C. Upon payment of the consideration set forth herein to
Assignor, Holding shall transfer Assignor's rights and obligations
under the PSA to SSLLC, which is Holding's wholly-owned subsidiary set
up for the purpose of being the Purchaser under the PSA.
For valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment. For the consideration set forth in Section 2
hereof, Assignor hereby assigns, transfers and conveys to Assignees,
and each ratifies and confirms the assignment, transfer, and
conveyance to Assignees, of all of Assignor's right, title and
interest in and to Assignor's rights and obligations under the PSA
(the "Assigned Interest"), which Assigned Interest shall be allocated
among the Assignees to SSLLC. Assignees hereby ratify and confirm
their acceptance of the foregoing assignment, transfer and conveyance
of the Assigned Interest upon the terms and conditions contained herein.
2. Consideration. In consideration of the Assigned Interest,
Holding shall pay Assignor a total amount of Fifty Thousand Dollars
($50,000) Holding may provide Assignor with a promissory note for
some or all of this amount upon commercially reasonable terms subject
to negotiation between Assignor and Holding. Notwithstanding the
foregoing, the assignment and assumption provided for herein shall be
absolute and irrevocable, and failure on the part of Assignees to pay
the consideration set forth herein shall give rise to a suit for
damages by Assignor against Assignees and not rescission of this
Assignment.
3. Representations and Warranties of Assignor. Assignor
represents and warrants to Assignees that Assignor's interest in the
Assigned Interest is not subject to any prior sale, transfer, pledge,
conveyance, assignment, participation interest or other encumbrance of
any kind; that Assignor has the full power, authority and legal right
to execute and deliver this Assignment, that Assignor has taken all
necessary action to authorize the execution, delivery and performance
of this Assignment; that this Assignment has been duly executed by
Assignor; that this Assignment is valid, binding and enforceable
against Assignor in accordance with its terms; and that the execution,
delivery and performance of Assignor's obligations hereunder do not
and will not (a) violate any statute, law, rule, regulation, judicial
order or decree or arbitration finding applicable to Assignor, (b)
breach Assignor's charter instruments or (c) breach, with or without
notice or passage of time, or both, any agreement or undertaking to
which Assignor is a party or by which it is bound.
4. Further Assurances. From time to time after the assignment
provided for herein, Assignor shall execute and deliver such
documents, instruments and certificates as Assignees may reasonably
request to more effectively vest, confirm and evidence in the SSLLC
title to or rights in and to any of the Assigned Interest, and to
otherwise carry out the purpose and intent of this Assignment.
5. Binding Effect; Benefits. All of the terms of this
Assignment shall be binding upon, inure to the benefit of, and be
enforceable by and against the parties hereto and their respective
successors and authorized assigns. Nothing in this Assignment,
express or implied, is intended to confer upon any other person any
rights or remedies under or by reason of this Assignment, except as
expressly indicated in this Assignment.
6. Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia
without regard to its otherwise applicable provisions of conflicts of
laws.
7. Counterparts. This Assignment may be executed in one or
more counterparts, each of which when so executed shall be deemed to
be an original, all of which shall together constitute one and the
same instrument.
8. Expenses. Except as otherwise provided herein, each party
shall pay its own respective expenses, costs, and fees (including,
without limitation, attorney and accountants' fees) incurred in
connection with the negotiation, preparation, execution and delivery
of this Assignment and the consummation of the transactions
contemplated by this Assignment.
9. Entire Agreement. This Assignment represents the entire
agreement between Assignor and Assignees with respect to the Assigned
Interest and incorporates herein any prior representations, warranties
and agreements (oral or written) with respect to the Assigned Interest.
10. Amendment and Waiver. This Assignment may be amended,
modified, superseded, or canceled and any of the terms, covenants.
representations, warranties or conditions of this Assignment may be
waived only by a written instrument executed by the parties hereto or,
in the case of a waiver, by or on behalf of the party waiving
compliance. The failure of any party at any time to require
performance of any provision of this Assignment shall not affect the
right of that party at a later time to enforce the same.
11. Severability. Any provision, or clause thereof, of this
Assignment that shall be found to be contrary to applicable law or
otherwise unenforceable shall not affect the remaining terms of this
Assignment, which shall be construed as if the unenforceable
provision, or clause thereof, were absent from this Assignment.
12. Headings. The headings of the sections and subsections of
this Assignment have been inserted for convenience of reference only
and shall not restrict or otherwise modify any of the terms or
provisions of this Assignment.
13. Interpretation. Unless the context of this Assignment
clearly requires otherwise: (i) references to the plural include the
singular, the singular the plural, and the part the whole, (ii)
references to one gender include all genders, (iii) "or" has the
inclusive meaning frequently identified with the phrase "and/or," (iv)
"including" has the inclusive meaning frequently identified with the
phrase "but not limited to" or "without limitation," and (v)
references to "hereunder," "herein" or "hereof" relate to this
Assignment as a whole. Any reference herein to any agreement,
including this Assignment, shall be deemed to include such agreement
as it may be modified, varied, amended or supplemented from time to
time. Any reference herein to any person or entity shall be deemed to
include the heirs, personal representatives, successors and permitted
assigns of such person or entity.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the date first written above.
ASSIGNOR:
XXXXXXXX STREET CAPITAL, LLC
s/s Xxxx X. Xxxx
Xxxx X. Xxxx
Managing Member
ASSIGNEE:
XXXXXXXXX HOLDING, INC.
s/s Xxxx X. Xxxx
Xxxx X. Xxxx
President
XXXXXXXXX SPRINGS, LLC,
a Virginia limited liability company
By: Xxxxxxxxx Holding Inc.
Its: Managing Member
By s/s Xxxx X. Xxxx
Xxxx X. Xxxx
President
EXHIBIT 3i AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
PRE SETTLEMENT FUNDING CORP
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PRE SETTLEMENT FUNDING CORP.
Under Sections 242 and 245 of the
Delaware General Corporation Law
PRE SETTLEMENT FUNDING CORP. (the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware ("GCL"), does hereby certify
that:
The name under which the Corporation was originally
incorporated was Pre Settlement Funding Corporation. The original
Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on October 14, 1999, and
an amendment thereto was filed with the Secretary of the State of
Delaware in accordance with Sections 241 and 245 of the GCL on
September 29, 2000 (as heretofore amended, the "Certificate of
Incorporation").
The restatement of and amendments to the Certificate of
Incorporation have been duly adopted by a resolution of the Board of
Directors of the Corporation (the "Board of Directors") proposing and
declaring advisable this Amended and Restated Certificate of
Incorporation, and the Corporation's stockholders have given their
written consent pursuant to Section 228 of the GCL, all in accordance
with the provisions of Sections 242 and 245 of the GCL.
This Amended and Restated Certificate of Incorporation
restates and amends the Certificate of Incorporation of the
Corporation in its entirety. The amendments to the Certificate of
Incorporation effected by this Amended and Restated Certificate of
Incorporation include, but are not limited to, amendments to change
the name of the Corporation.
The capital of the Corporation shall not be reduced under
or by reason of the foregoing amendments to the Certificate of
Incorporation.
The Certificate of Incorporation is hereby superseded by
this Amended and Restated Certificate of Incorporation, which shall
henceforth be the Certificate of Incorporation of the Corporation.
The text of the Restated Certificate of Incorporation is
hereby restated and amended to read in its entirety as follows
(hereinafter, the Amended and Restated Certificate of Incorporation,
as it may be further amended or restated from time to time, is
referred to as the "Amended and Restated Certificate of
Incorporation").
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
ARTICLE I
Name
The name of the Corporation is XXXXXXXXX HOLDINGS, INC.
ARTICLE II
Address and Registered Agent
The address of the Corporation's registered office in the
State of Delaware is 000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxx of
Xxx Xxxxxx, XX 00000. The name of its registered agent at such
address is Corporations & Companies, Inc.
ARTICLE III
Description of Business Purpose
The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the GCL.
ARTICLE IV
Capital Stock
The Corporation shall have authority to issue a total of
20,000,000 shares, each share having a par value of one tenth of one
cent ($0.001), in two classes of stock, to be designated,
respectively, "Preferred Stock" and "Common Stock." Of this total
number of authorized shares, One Hundred Thousand (100,000) shares
shall be Preferred Stock, and Nineteen Million Nine Hundred Thousand
(19,900,000) shares shall be one class of Common Stock.
The Preferred Stock may be issued from time to time in one
or more series, each of which series shall have such distinctive
designation or title as shall be fixed by the Board of Directors of
the Corporation (the "Board") prior to the issuance of any shares
thereof. Each such series of Preferred Stock shall have such voting
powers, full or limited, or no voting powers, and such preferences
and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof as shall be
stated in such resolution or resolutions providing for the issue of
such series of Preferred Stock as may be adopted from time to time by
the Board prior to the issuance of any shares thereof pursuant to the
authority hereby expressly vested in the Board, all in accordance
with the GCL.
Each holder of shares of Common Stock shall be entitled to
cast one vote per share of such stock. Except to the extent
otherwise specifically required by law, this Certificate of
Incorporation or the Bylaws of the Corporation: (a) the holders of
all shares of voting capital stock shall be entitled to notice of any
meeting of shareholders and to attend any such meeting, and (b) all
such holders shall vote as a single class. Fractional votes shall
not be permitted. Any fractional voting rights shall be rounded to
the nearest whole number (with one-half being rounded upward).
ARTICLE V
Incorporator
The name and mailing address of the incorporator is:
Corporation & Companies, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
ARTICLE VI
Directors
The business of the Corporation shall be managed by the
Board. Unless and except to the extent that the Bylaws of the
Corporation shall so require, the election of directors of the
Corporation need not be by written ballot. Without further amendment
to this Amended and Restated Certificate of Incorporation, and in
addition to all other powers expressly granted by statute, the Board
shall be authorized to adopt, amend or repeal the Bylaws of the
Corporation.
ARTICLE VII
Indemnity
No director of the Corporation shall be liable to the
Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that this provision
does not eliminate the liability of the director (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of the law,
(iii) under Section 174 of Title 8 of the GCL, or (iv) for any
transaction from which the director derived an improper personal
benefit. For purposes of the prior sentence, the term "damages"
shall, to the extent permitted by law, include without limitation any
judgment, fine, amount paid in settlement, penalty, punitive damages,
excise or other tax assessed with respect to an employee benefit
plan, or expense of any nature (including, without limitation,
counsel and other professional fees and disbursements). Each person
who serves as a director of the Corporation while this Article
Seventh is in effect shall be deemed to be doing so in reliance on
the provisions of this Article Seventh, and neither the amendment or
repeal of this Article Seventh, nor the adoption of any provision of
this Certificate of Incorporation inconsistent with this Article
Seventh, shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for, arising out
of, based upon, or in connection with any acts or omissions of such
director occurring prior to such amendment, repeal, or adoption of
any inconsistent provision. The provisions of this Article Seventh
are cumulative and shall be in addition to and independent of any and
all other limitations on or eliminations of the liabilities of
directors of the Corporation, as such, whether such limitation or
eliminations arise under or are created by any law, rule, regulation,
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
ARTICLE VIII
Amendment
From time to time, any of the provisions of this
Certificate of Incorporation may be amended, altered or repealed, and
other provisions authorized by the laws of the State of Delaware at
the time in force may be added or inserted in the manner and at the
time prescribed by said laws, and all rights at any time conferred
upon the stockholders of the Corporation by this Certificate of
Incorporation are granted subject to the provisions of this Article Eighth.
The undersigned does make this certificate, hereby
declaring and certifying that this is the Corporation's act and deed
and the facts herein stated are true.
PRE SETTLEMENT FUNDING CORP.
By: s/s Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: President
