EXCHANGE AGREEMENT
Between
OXFORD KNIGHT INTERNATIONAL, INC.,
AND
XXXXX AND SPITTS, INC.
Dated October 7, 2002
TABLE OF CONTENTS
ARTICLE I REPRESENTATIONS, COVENANTS OF XXXXX AND SPITTS, INC.
1.01 Organization 1
1.02 Capitalization 1
1.03 Subsidiaries and Predecessor Corporations 1
1.04 Information 2
1.05 Options and Warrants 2
1.06 Absence of Certain Changes or Events 2
1.07 Litigation and Proceedings 3
1.08 Contracts 3
1.09 No Conflict With Other Instruments 4
1.10 Governmental Authorizations 4
1.11 Approval of Agreement 4
1.12 Labor Relations 5
1.13 Xxxxx Schedules 5
1.14 Valid Obligation 6
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OF PITT'S & SPITT'S,
INC. AND FABRICATING SOLUTIONS, INC.
2.01 Organization 6
2.02 Capitalization 6
2.03 Title to Assets 6
2.04 Schedule of Assets 7
2.05 Indebtedness 9
2.06 Litigation 9
2.07 Information 9
2.08 No Conflict with Other Instruments 9
2.09 Government Authorizations 10
2.10 Compliance with Laws and Regulations
2.11 Approval of Agreement
2.12 Pitt's & Spitt's And Fabricating Solutions Schedules 10
2.13 Valid Obligation 11
ARTICLE III PLAN OF EXCHANGE
3.01 The Exchange 11
3.02 Closing 11
3.03 Closing Events 11
ARTICLE IV SPECIAL COVENANTS
4.01 Access to Properties and Records 13
4.02 Delivery of Books and Records 13
4.03 Third Party Consents and Certificates 13
4.04 Oxford Knight Stockholder Consents
ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF PITT'S & SPITT'S, INC.
AND FABRICATING SOLUTIONS, INC.
5.01 Accuracy of Representations and Performance of Covenants 16
5.02 Approval by Oxford Directors 16
5.03 No Governmental Prohibitions 16
5.04 Consents 17
5.05 Other Items 17
5.06 Approval by Oxford Shareholders
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXX AND SPITTS
6.01 Accuracy of Representations and Performance of Covenants 17
6.02 No Governmental Prohibition 17
6.03 Consents 18
6.04 Other Items 18
6.05 Approval by Oxford Shareholders
ARTICLE VII MISCELLANEOUS
7.01 Brokers 18
7.02 Governing Law 18
7.03 Notices 18
7.04 Attorney's Fees 18
7.05 Confidentiality 18
7.06 Public Announcements and Filings 19
7.07 Schedules; Knowledge 19
7.08 Third Party Beneficiaries 19
7.09 Expenses 19
7.10 Entire Agreement 19
7.11 Survival; Termination 19
7.12 Counterparts 19
7.13 Amendment or Waiver 19
7.14 Best Efforts 19
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement") is
entered into as of this ___ day of October 2002 by and between OXFORD KNIGHT
INTERNATIONAL, INC. a Texas corporation (hereinafter referred to as ("Oxford"),
which owns 100% of all of the outstanding shares of Pitt's & Spitt's, Inc., a
Texas Corporation and Fabricating Solutions, Inc., a Texas corporation sometimes
collectively referred to as the "Acquired Companies", and XXXXX AND SPITTS,
INC., formerly XXXXXX.XX, INC. a Nevada corporation (hereinafter referred to as
"Xxxxx Nevada"), upon the following premises:
Premises
WHEREAS, Oxford is a publicly held corporation organized under the laws of
the State of Texas;
WHEREAS, Xxxxx Nevada is a publicly-traded corporation organized under the
laws of the State of Nevada;
WHEREAS, management of Xxxxx Nevada has determined that it is in the best
interest of the parties that Xxxxx Nevada acquire control of the Acquired
Companies through the issuance of common stock in exchange for shares of common
stock of the Acquired Companies; and
WHEREAS, Oxford and Xxxxx Nevada desire to set forth the terms of the
Exchange, which is intended to constitute a tax-free reorganization pursuant to
the provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF XXXXX NEVADA
As an inducement to, and to obtain the reliance of Oxford, except as set
forth on the Xxxxx Nevada Schedules (as hereinafter defined), Xxxxx Nevada
represents and warrants as follows:
Section 1.01 Organization. Xxxxx Nevada is a corporation duly organized and
validly existing under the laws of the State of Nevada and has the corporate
power and is duly authorized, qualified, franchised, and licensed under all
applicable laws, regulations, ordinances, and orders of public authorities to
own all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, except where failure to be so qualified
would not have a material adverse effect on its business. Included in the Xxxxx
Nevada Schedules are complete and correct copies of the articles of
incorporation, and bylaws of Xxxxx Nevada as in effect on the date hereof. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of Xxxxx
Nevada's Articles of Incorporation or Bylaws. Xxxxx Nevada has taken all actions
required by law, its articles of incorporation, or otherwise to authorize the
execution and delivery of this Agreement. Xxxxx Nevada has full power,
authority, and legal right and has taken all action required by law, its
articles of incorporation, and otherwise to consummate the transactions herein
contemplated.
Section 1.02 Capitalization. The authorized capitalization of Xxxxx Nevada
consists of 80,000,000 shares of common stock, $.001 par value, of which
approximately 897,250 shares are currently issued and outstanding. In addition,
Xxxxx Nevada has authorized 10,000,000 shares of preferred stock, $.001 par
value, of which ____ shares are currently issued and outstanding. All issued and
outstanding shares are legally issued, fully paid, and non-assessable and not
issued in violation of the preemptive or other rights of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. Xxxxx Nevada does
not have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 1.03. For purposes hereinafter, the term "Xxxxx Nevada"
also includes those subsidiaries, if any, set forth on Schedule 1.03.
Section 1.04 Information. The information concerning Xxxxx Nevada set forth
in this Agreement and in the Xxxxx Nevada Schedules is complete and accurate in
all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading, but not
limited to, information relating to governmental, employee, environmental,
litigation and securities matters and transactions with affiliates.
Section 1.05 Options or Warrants. There are ___________ existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued Xxxxx Nevada common stock.
Section 1.06 Absence of Certain Changes or Events. Except as set forth in
this Agreement or the Xxxxx Nevada Schedules, since June 30, 2002:
(a) there has not been (i) any material adverse change in the business,
operations, properties, assets, or condition of Xxxxx Nevada or (ii) any damage,
destruction, or loss to Xxxxx Nevada (whether or not covered by insurance)
materially and adversely affecting the business, operations, properties, assets,
or condition of Xxxxx Nevada;
(b) Xxxxx Nevada has not (i) declared or made, or agreed to declare or
make, any payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to purchase or
redeem, any of its capital stock; (ii) waived any rights of value which in the
aggregate are outside of the ordinary course of business or material considering
the business of Xxxxx Nevada; (iii) made any increase in any profit sharing,
bonus, deferred compensation, insurance, pension, retirement, or other employee
benefit plan, payment, or arrangement made to, for, or with its officers,
directors, or employees; and
(c) to the best knowledge of Xxxxx Nevada, Xxxxx Nevada has not become
subject to any law or regulation which materially and adversely affects, or in
the future may adversely affect the business, operations, properties, assets, or
condition of Xxxxx Nevada.
Section 1.07 Litigation and Proceedings. Except as set forth in the Xxxxx
Nevada Schedules, there are no actions, suits, proceedings, or investigations
pending or, to the knowledge of Xxxxx Nevada after reasonable investigation,
threatened by or against Xxxxx Nevada or affecting Xxxxx Nevada or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign, or before any arbitrator of any kind.
Xxxxx Nevada does not have any knowledge of any material default on its part
with respect to any judgment, order, injunction, decree, award, rule, or
regulation of any court, arbitrator, or governmental agency or instrumentality
or of any circumstances which, after reasonable investigation, would result in
the discovery of such a default.
Section 1.08 Contracts.
(a) Except as included or described in the Xxxxx Nevada Schedules, there
are no "material" contracts, agreements, franchises, license agreements, debt
instruments or other commitments to which Xxxxx Nevada is a party or by which it
or any of its assets, products, technology, or properties are bound other than
those incurred in the ordinary course of business (as used in this Agreement, a
"material" contract, agreement, franchise, license agreement, debt instrument or
commitment is one which (i) will remain in effect for more than six (6) months
after the date of this Agreement or (ii) involves aggregate obligations of at
least fifty thousand dollars ($50,000)); and
(b) All contracts, agreements, franchises, license agreements, and other
commitments to which Xxxxx Nevada is a party or by which its properties are
bound and which are material to the operations of Xxxxx Nevada taken as a whole
are valid and enforceable by Xxxxx Nevada in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally.
Section 1.09 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which Xxxxx Nevada is a party or to which any of its
properties or operations are subject.
Section 1.10 Governmental Authorizations. Except as set forth in the Xxxxx
Nevada Schedules, Xxxxx Nevada has all licenses, franchises, permits, and other
governmental authorizations that are legally required to enable it to conduct
its business in all material respects as conducted on the date hereof. Except
for compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent, or order of, or
registration, declaration, or filing with, any court or other governmental body
is required in connection with the execution and delivery by Xxxxx Nevada of
this Agreement and the consummation by Xxxxx Nevada of the transactions
contemplated hereby.
Section 1.11 Approval of Agreement. The board of directors of Xxxxx Nevada
has authorized the execution and delivery of this Agreement by Xxxxx Nevada and
has approved this Agreement and the transactions contemplated hereby.
Section 1.12 Labor Relations. Xxxxx Nevada has not had work stoppage
resulting from labor problems. To the knowledge of Xxxxx Nevada, no union or
other collective bargaining organization is organizing or attempting to organize
any employee of Xxxxx Nevada.
Section 1.13 Xxxxx Nevada Schedules. Xxxxx Nevada has delivered to Oxford
the following schedules, which are collectively referred to as the "Xxxxx Nevada
Schedules" and which consist of separate schedules dated as of the date of
execution of this Agreement, all certified by the chief executive officer of
Xxxxx Nevada as complete, true, and correct as of the date of this Agreement in
all material respects:
(a) a schedule containing complete and correct copies of the articles of
incorporation, and bylaws of Xxxxx Nevada in effect as of the date of this
Agreement;
(b) a schedule setting forth a description of any material adverse change
in the business, operations, property, inventory, assets, or condition of Xxxxx
Nevada since June 30, 2002, required to be provided; and
(c) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Xxxxx Nevada
Schedules by Sections 1.01 through 1.14.
Xxxxx Nevada shall cause the Xxxxx Nevada Schedules and the instruments and
data delivered to Oxford hereunder to be promptly updated after the date hereof
up to and including the Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by Xxxxx Nevada. Xxxxx
Nevada shall have until October 31, 2002 to pro vide such schedules. If Xxxxx
Nevada cannot or fails to do so, or if Oxford acting reasonably finds any such
schedules or updates provided after the date hereof to be unacceptable according
to the criteria set forth below, Oxford may terminate this Agreement by giving
written notice to Xxxxx Nevada within five (5) days after the schedules or
updates were due to be produced or were provided. For purposes of the foregoing,
Oxford may consider a disclosure in the Xxxxx Nevada Schedules to be
"unacceptable" only if that item would have a material adverse impact on the
financial condition of Xxxxx.
Section 1.14 Valid Obligation. This Agreement and all agreements and other
documents executed by Xxxxx Nevada in connection herewith constitute the valid
and binding obligation of Xxxxx Nevada, enforceable in accordance with its or
their terms, except as may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ACQUIRED COMPANIES
As an inducement to, and to obtain the reliance of Xxxxx Nevada, except as
set forth in the Acquired Companies Schedules (as hereinafter defined), Acquired
Companies represent and warrant as follows:
Section 2.01 Organization. Pitt's & Spitt's, Inc. and Fabricating
Solutions, Inc. are corporations duly organized and validly existing under the
laws of the State of Texas, with corporate power to own property and carry on
its business as it is now being conducted. Copies of the Articles of
Incorporation of Acquired Companies, that have been certified by the Secretary
of State of Texas and delivered to Xxxxx Nevada are complete and accurate as of
the date of this Agreement. Acquired Companies are qualified to transact
business as foreign corporations in which its principal properties are located
or are not required to be qualified as a foreign corporation to transact
business in any other jurisdiction.
Section 2.02 Capitalization. Pitt's & Spitt's, Inc. has an authorized
capitalization of 100,000,000 shares of Common Stock, $0.001 Par Value, and
10,000,000 shares of Preferred Stock, $0.001 par value and as of the date of
this Agreement 90,000,000 shares of Common Stock are issued and outstanding,
fully paid, and nonassessable. Fabricating Solutions, Inc. has an authorized
capitalization of ______ shares of capital stock, all of one class of ______ par
value, and as of the date of this Agreement _____ shares are issue and
outstanding, fully paid, and nonassessble. There are no outstanding
subscriptions, options, contracts, commitments, or demands relating to the
capital stock of Acquired Companies or other agreements of any character under
which Acquired Companies would be obligated to issue or purchase shares of its
capital stock.
Section 2.03 Title to Assets. Acquired Companies have good marketable title
to all assets specified in the schedule described in Paragraph 2.04. All such
assets are not subject to any mortgage, pledge, lien, charge, security interest,
encumbrance, or restriction except those that:
a. Are disclosed in the Schedule of Assets listed in Paragraph 2.04; or b. Do
not materially adversely affect the use of the asset.
Section 2.04 Schedule of Assets. Oxford has delivered to Xxxxx a separate
Schedule of Assets ("Schedule "A"), specifically referring to this paragraph,
containing a true and complete:
a. List description of all property owned by Acquired Companies, and any
real property in which Acquired Companies have a leasehold interest;
b. List of all fire and other casualty and liability policies of Acquired
Companies in effect at the time of delivery of such schedule.
Section 2.05 Indebtedness. (a) Acquired Companies presently have no
outstanding indebtedness other than liabilities incurred in the ordinary course
of business or in connection with this transaction other than on the attached
schedule ("Schedule "B"). Acquired Companies are not in default with respect to
any terms or conditions of any indebtedness.
(b) Acquired Companies have not made any special assignment for the
benefit of creditors, nor has any involuntary or voluntary petition in
bankruptcy been filed by or against Acquired Companies.
Section 2.06 Litigation. (a) Acquired Companies are not a party to, nor
have they been threatened with, any litigation or governmental proceeding that,
if decided adversely to it, would have a material adverse effect on the
transaction contemplated by this Agreement, or on the financial condition, net
worth, prospectus, or business of Acquired Companies. To the best of Oxford's
knowledge, it is not aware of any facts that might result in any action, suit,
or other proceeding that would result in any material adverse change in the
business or financial condition of Acquired Companies.
Section 2.07 Information. The information concerning Acquired Companies set
forth in this Agreement and the Acquired Companies Schedules are complete and
accurate in all material respects and do not contain any untrue statements of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not misleading.
Section 2.08 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which the
Acquired Companies are a party or to which any of its assets or opera tions are
subject.
Section 2.09 Governmental Authorizations. Acquired Companies have all
licenses, franchises, permits, and other governmental authorizations, that are
legally required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Oxford of this Agreement and the consummation by Oxford of the
transactions contemplated hereby.
Section 2.10 Compliance With Laws and Regulations. To the best of its
knowledge, the Acquired Companies have complied with all applicable statutes and
regulations of any federal, state, or other applicable governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
the Acquired Companies or except to the extent that noncompliance would not
result in the occurrence of any material liability. This compliance includes,
but is not limited to, the filing of all reports to date with federal and state
securities authorities.
Section 2.11 Approval of Agreement. The board of directors of Oxford has
authorized the execution and delivery of this Agreement by Oxford and has
approved this Agreement and the transactions contemplated hereby.
Section 2.12 Acquired Companies Schedules. Acquired Companies have
delivered to Xxxxx Nevada the following schedules which are collectively
referred to as the "Acquired Companies Schedules" and which consist of separate
schedules, which are dated the date of this Agreement, all certified by the
chief executive officer of Oxford to be complete, true, and accurate in all
material respects as of the date of this Agreement:
(a) a schedule containing complete and accurate copies of the certificate
of incorporation and bylaws of the Acquired Companies as in effect as of the
date of this Agreement;
(b) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Acquired Companies
Schedules by Sections 2.01 through 2.12.
The Acquired Companies shall cause the Acquired Companies Schedules and the
instruments and data delivered to Xxxxx Nevada hereunder to be promptly updated
after the date hereof up to and including the Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by the Acquired Companies.
The Acquired Companies shall have until August 31, 2002 to provide such
schedules. If the Acquired Companies cannot or fail to do so, or if Xxxxx Nevada
acting reasonably finds any such schedules or updates provided after the date
hereof to be unacceptable according to the criteria set forth below, Xxxxx
Nevada may terminate this Agreement by giving written notice to the Acquired
Companies within five (5) days after the schedules or updates were due to be
produced or were provided. For purposes of the foregoing, Xxxxx Nevada may
consider a disclosure in the Acquired Companies Schedules to be "unacceptable"
only if that item would have a material adverse impact on the financial
statements of Xxxxx Nevada.
Section 2.13 Valid Obligation. This Agreement and all agreements and other
documents executed by the Acquired Companies in connection herewith constitute
the valid and binding obligation of the Acquired Companies, enforceable in
accordance with its or their terms, except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefor may be brought.
Section 2.14. No Brokers or Finders. All negotiations on the part of the
parties related to this Agreement have been accomplished solely by the parties
without the assistance of any person employed as a broker or finder. The parties
have done nothing to give rise to any valid claims against Xxxxx or Acquired
Companies for a brokerage commission, finders' fee, or any similar charge.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01 The Exchange. On the terms and subject to the conditions set
forth in this Agreement, on the Closing Date (as defined in Section 3.03), Xxxxx
Nevada shall issue, transfer and deliver, free and clear of all liens, pledges,
encumbrances, charges, restrictions or known claims of any kind, nature, or
description, 1,970,000 shares of restricted common stock of Xxxxx Nevada to
Oxford, which shares are subject to Rule 144. In exchange for the issuance of
such shares of common stock by Xxxxx Nevada, Oxford shall transfer Xxxxx 100% of
the issued and outstanding shares of Common Stock of the Acquired Companies. At
the Closing, Xxxxx Nevada shall, on surrender of its certificate or certificates
representing such common stock of Xxxxx Nevada to Oxford or its registrar or
transfer agent, be entitled to receive a certificate or certificates evidencing
____________ shares of Pitt's & Spitt's, Inc. and _____ shares of Fabricating
Solutions, Inc.
Section 3.02 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than _________, 2002, subject
to the right of the parties to extend such Closing Date by up to an additional
thirty (30) days. Such Closing shall take place at a mutually agreeable time and
place.
Section 3.03 Closing Events. At the Closing, the parties shall execute,
acknowledge, and deliver (or shall ensure to be executed, acknowledged, and
delivered) any and all certificates, opinions, financial statements, schedules,
agreements, resolutions, rulings or other instruments required by this Agreement
to be so delivered at or prior to the Closing.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. Xxxxx Nevada and Oxford will
each afford to the officers and authorized representatives of the other full
access to the properties, books and records of Xxxxx Nevada or Oxford, as the
case may be, in order that each may have a full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of the other,
and each will furnish the other with such additional financial and operating
data and other information as to the business and properties of Xxxxx Nevada or
Oxford, as the case may be, as the other shall from time to time reasonably
request. Without limiting the foregoing, as soon as practicable after the end of
each fiscal quarter (and in any event through the last fiscal quarter prior to
the Closing Date), each party shall provide the other with quarterly internally
prepared and unaudited financial statements.
Section 4.02 Delivery of Books and Records. At the Closing, Oxford shall
deliver to Xxxxx Nevada the originals of the corporate minute books, books of
account, contracts, records, and all other books or documents of the Acquired
Companies now in the possession of Oxford or its representatives.
Section 4.03 Third Party Consents and Certificates. Xxxxx Nevada and Oxford
agree to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein contemplated.
Section 4.04 Oxford Knight Shareholder Consent. Oxford agrees to conduct a
shareholders meeting within 30 days of the execution of this agreement and that
Xxxx Syracuse will vote to approve this transaction.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF OXFORD
The obligations of Oxford under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants. The
representations and warranties made by Xxxxx Nevada in this Agreement were true
when made and shall be true at the Closing Date with the same force and effect
as if such representations and warranties were made at and as of the Closing
Date (except for changes therein permitted by this Agreement). Xxxxx Nevada
shall have performed or complied with all covenants and conditions required by
this Agreement to be performed or complied with by Xxxxx Nevada prior to or at
the Closing
Section 5.02 Approval by Oxford Directors. The Exchange shall have been
approved, and shares delivered in accordance with Section 3.01, by the directors
of Oxford.
Section 5.03 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.04 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Xxxxx after the Closing Date on the basis as presently operated
shall have been obtained.
Section 5.05 Other Items.
Oxford shall have received such further opinions, documents, certificates
or instruments relating to the transactions contemplated hereby as Oxford may
reasonably request.
Section 5.06 Approval by Oxford Shareholders.
This Agreement shall have been approved by the Oxford Shareholders.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXX NEVADA
The obligations of Xxxxx Nevada under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants. The
representations and warranties made by Oxford in this Agreement were true when
made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date.
Additionally, Oxford shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by Oxford
and shall have satisfied the conditions described below prior to or at the
Closing:
(a) The directors of Xxxxx Nevada shall have approved the Exchange and the
related transactions described herein.
Section 6.02 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.03 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of the Acquired Companies and Xxxxx Nevada after the Closing Date on
the basis as presently operated shall have been obtained.
Section 6.04 Other Items. Xxxxx Nevada shall have received further
opinions, documents, certificates, or instruments relating to the transactions
contemplated hereby as Xxxxx Nevada may reasonably request.
Section 6.05 Approval by Oxford Shareholders. This Agreement shall have
been approved by the Oxford Shareholders.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Brokers. Xxxxx Nevada and Oxford agree that, except as set out
on Schedule 7.01 attached hereto, there were no finders or brokers involved in
bringing the parties together or who were instrumental in the negotiation,
execution or consummation of this Agreement. Xxxxx Nevada and Oxford each agree
to indemnify the other against any claim by any third person other than those
described above for any commission, brokerage, or finder's fee arising from the
transactions contemplated hereby based on any alleged agreement or understanding
between the indemnifying party and such third person, whether express or implied
from the actions of the indemnifying party.
Section 7.02 Governing Law. This Agreement shall be governed by, enforced,
and construed under and in accordance with the laws of the United States of
America and, with respect to the matters of state law, with the laws of the
State of Texas without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees that any
legal or equitable action or proceedings arising under or in connection with
this Agreement shall be brought exclusively in the federal courts of the United
States, (b) by execution and delivery of this Agreement, irrevocably submits to
and accepts, with respect to any such action or proceeding, generally and
unconditionally, the jurisdiction of the aforesaid court, and irrevocably waives
any and all rights such party may now or hereafter have to object to such
jurisdiction.
Section 7.03 Notices. Any notice or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to Oxford, to: Oxford Knight International, Inc.
C/o Xxxx Syracuse
00000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
With copies to: Xxxxx Xxxx, Esq.
Vanderkam & Xxxxxxx
000 Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to Xxxxx Nevada, to: Xxxxx and Spitts, Inc.
C/o Xxxx Syracuse
00000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.04 Attorney's Fees. In the event that either party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the prevailing party shall be reimbursed by the
losing party for all costs, including reasonable attorney's fees, incurred in
connection therewith and in enforcing or collecting any judgment rendered
therein.
Section 7.05 Confidentiality. Each party hereto agrees with the other that,
unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
Section 7.06 Public Announcements and Filings. Unless required by
applicable law or regulatory authority, none of the parties will issue any
report, statement or press release to the general public, to the trade, to the
general trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by the parties. Copies of any such
filings, public announcements or disclosures, including any announcements or
disclosures mandated by law or regulatory authorities, shall be delivered to
each party at least one (1) business day prior to the release thereof.
Section 7.07 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.08 Third Party Beneficiaries. This contract is strictly between
Xxxxx and Oxford, and, except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this Agreement.
Section 7.09 Expenses. Subject to this Agreement, whether or not the
Exchange is consummated, each of Xxxxx Nevada and Oxford will bear their own
respective expenses, including legal, accounting and professional fees, incurred
in connection with the Exchange or any of the other transactions contemplated
hereby.
Section 7.10 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 7.11 Survival; Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of two years.
Section 7.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.13 Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.14 Best Efforts. Subject to the terms and conditions herein
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective officers, hereunto duly authorized, as of the
date first-above written.
ATTEST: OXFORD KNIGHT INTERNATIONAL, INC.
BY: /s/ Xxxx Syracuse
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Secretary or Assistant Secretary President
ATTEST: XXXXX AND SPITTS, INC.
BY: /s/ Xxxxxxxx Syracuse
-------------------------------------- ---------------------------------
Secretary or Assistant Secretary President
