MERGER AGREEMENT
by and among
Seaway Valley Capital Corporation,
Seaway Valley Acquisition Corp.,
and
WiseBuys Stores, Inc.
Dated as of October 23, 2007
MERGER AGREEMENT
Merger Agreement (the "Agreement") dated as of October 23, 2007 by and
among Seaway Valley Capital Corporation, a corporation formed under the laws of
the State of Delaware ("SVCC"), Seaway Valley Acquisition Corp., a corporation
newly formed under the laws of the State of Delaware and a wholly owned
subsidiary of SVCC (the "Merger Sub"), and WiseBuys Stores, Inc., a corporation
formed under the laws of the State of Delaware ("WiseBuys"). Each of SVCC, the
Merger Sub, and WiseBuys is referred to herein individually as a "Party" and all
are referred to collectively as the "Parties."
PREAMBLE
WHEREAS, WiseBuys is engaged in the business of operating retail
merchandise stores;
WHEREAS, SVCC and WiseBuys have determined that a business combination
between them is advisable and in the best interests of their respective
companies and stockholders and presents an opportunity for their respective
companies to achieve long-term strategic and financial benefits;
WHEREAS, SVCC has proposed to acquire WiseBuys pursuant to a merger
transaction whereby, pursuant to the terms and subject to the conditions of this
Agreement, WiseBuys shall become a wholly owned subsidiary of SVCC through the
merger of WiseBuys with and into the Merger Sub (the "Merger"); and
WHEREAS, in the Merger, all issued and outstanding shares of capital stock
of WiseBuys shall be cancelled and converted into the right to receive shares of
Series C Convertible Shares (the "Merger Shares") in the ratios defined herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
representations and warranties contained herein, the Parties, intending to be
legally bound, hereby agree as follows:
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Applicable Law" means any domestic or foreign law, statute, regulation,
rule, policy, guideline or ordinance applicable to the businesses of the Parties
or the Merger.
"DGCL" means Delaware General Corporation Law.
"Knowledge" means, in the case of SVCC or WiseBuys, a particular fact or other
matter of which its Chief Executive Officer or Chief Financial Officer is
actually aware or which a prudent individual serving in such capacity could be
expected to discover or otherwise become aware of in the course of conducting a
reasonable review or investigation of the corporation and its business and
affairs.
"Lien" means, with respect to any property or asset, any mortgage, lien, pledge,
charge, security interest, claim, encumbrance, royalty interest, any other
adverse claim of any kind in respect of such property or asset, or any other
restrictions or limitations of any nature whatsoever.
"Material Adverse Effect" with respect to any entity or group of entities means
any event, change or effect that has or would have a materially adverse effect
on the financial condition, business or results of operations of such entity or
group of entities, taken as a whole.
"Person" means any individual, corporation, partnership, trust or unincorporated
organization or a government or any agency or political subdivision thereof.
"Surviving Entity" shall mean WiseBuys as the surviving entity in the Merger as
provided in Section 1.03.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means:
(i) any income, alternative or add-on minimum tax, gross receipts tax,
sales tax, use tax, ad valorem tax, transfer tax, franchise tax,
profits tax, license tax, withholding tax, payroll tax, employment
tax, excise tax, severance tax, stamp tax, occupation tax, property
tax, environmental or windfall profit tax, custom, duty or other tax,
impost, levy, governmental fee or other like assessment or charge of
any kind whatsoever together with any interest or any penalty,
addition to tax or additional amount imposed with respect thereto by
any governmental or Tax authority responsible for the imposition of
any such tax (domestic or foreign), and
(ii) any liability for the payment of any amounts of the type described in
clause (i) above as a result of being a member of an affiliated,
consolidated, combined or unitary group for any Taxable period, and
(iii) any liability for the payment of any amounts of the type described in
clauses (i) or (ii) above as a result of any express or implied
obligation to indemnify any other person.
"Tax Return" means any return, declaration, form, claim for refund or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
ARTICLE I
THE MERGER
SECTION 1.01 STRUCTURE
Upon the terms and subject to the conditions set forth in this Agreement
and in accordance with the DGCL, at the Effective Time (as hereinafter defined),
all WiseBuys Shares (as hereinafter defined) shall be cancelled and converted
into the right to receive the Merger Shares. In connection therewith, the
following terms shall apply:
(a) Exchange Agent. Xxxxxx Xxxxxx, counsel to SVCC, shall act as the
exchange agent (the "Exchange Agent") for the purpose of exchanging
WiseBuys Shares for the Merger Shares. At or prior to the Closing,
SVCC shall deliver to the Exchange Agent the Merger Shares.
(b) Prior to the Closing Date, SVCC shall file with the Secretary of State
of Delaware a Certificate of Designation of Series C Convertible
Preferred Stock (the "Series C Convertible Shares") in the form
annexed hereto as Schedule 1.01(a).
(c) Conversion of Securities.
(i) Conversion of WiseBuys Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of SVCC,
WiseBuys or the Merger Sub, or the holders of any of their
respective securities:
(A) All of the issued and outstanding shares of capital stock of
WiseBuys (the "WiseBuys Shares") shall be converted as a
result of the Merger as follows: Each of the issued and
outstanding shares of common stock of WiseBuys immediately
prior to the Effective Time shall be converted into and
represent the right to receive, and shall be exchangeable
for, one-eighth (1/8) of a share of Series C Convertible
stock of SVCC, and each of the issued and outstanding shares
of Series A Preferred Stock of WiseBuys immediately prior to
the Effective Time shall be converted into and represent the
right to receive, and shall be exchangeable for, one-fourth
(1/4) of a share of Series C Convertible stock of SVCC.
(B) All WiseBuys Shares shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any
such shares shall cease to have any rights with respect
thereto, except the right to receive the Merger Shares to be
issued pursuant to this Section 1.01(c)(i)(A) upon the
surrender of such certificate in accordance with Section
1.07, without interest. No fractional shares may be issued;
but each fractional share that would result from the Merger
will be rounded to the nearest number of whole shares.
(ii) Conversion of Merger Sub Stock. At the Effective Time, by virtue
of the Merger and without any action on the part of WiseBuys,
SVCC, the Merger Sub, or the holders of any of their respective
securities, each share of capital stock of Merger Sub outstanding
immediately prior to the Effective Time shall be converted into
one share of the common stock of the Surviving Entity and the
shares of common stock of the Surviving Entity so issued in such
conversion shall constitute the only outstanding shares of
capital stock of the Surviving Entity and the Surviving Entity
shall be a wholly owned subsidiary of SVCC.
(d) Exemption from Registration. The Parties intend that the issuance of
the Merger Shares to the WiseBuys Shareholders shall be exempt from
the registration requirements of the Securities Act of 1933 (the
"Securities Act") pursuant to Section 4(2) of the Securities Act and
the rules and regulations promulgated thereunder.
SECTION 1.02 CLOSING.
The closing of the Merger (the "Closing") will take place at the offices of
Xxxxxx Xxxxxx, Esq. within one (1) business day following the satisfaction or
waiver of the conditions precedent set forth in Article V or at such other date
as SVCC and WiseBuys shall agree (the "Closing Date"), but in any event no later
than October 31, 2007 unless extended by a written agreement of SVCC and
WiseBuys.
SECTION 1.03 MERGER; EFFECTIVE TIME.
At the Effective Time and subject to and upon the terms and conditions of
this Agreement, Merger Sub shall, and SVCC shall cause Merger Sub to, merge with
and into WiseBuys in accordance with the provisions of the DGCL, the separate
corporate existence of WiseBuys shall cease and the Merger Sub shall continue as
the Surviving Entity. The Effective Time shall occur upon the filing with the
Secretary of State of the State of Delaware of a Certificate of Merger, executed
in accordance with the applicable provisions of the DGCL (the "Effective Time").
The date on which the Effective Time occurs is referred to as the "Effective
Date." Provided that this Agreement has not been terminated pursuant to Article
VI, the Parties will cause the Certificate of Merger to be filed as soon as
practicable after the Closing.
SECTION 1.04 EFFECT OF THE MERGER.
The Merger shall have the effect set forth in Title 8, Section 259 of the
DGCL. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time, all the properties, rights, privileges, powers and
franchises of WiseBuys and Merger Sub shall vest in the Surviving Entity, and
all debts, liabilities and duties of WiseBuys and Merger Sub shall become the
debts, liabilities and duties of the Surviving Entity.
SECTION 1.05 CERTIFICATE OF INCORPORATION AND BYLAWS; DIRECTORS
AND OFFICERS.
Pursuant to the Merger:
(a) The Certificate of Incorporation and Bylaws of the Merger Sub as in
effect immediately prior to the Effective Time shall be the
Certificate of Incorporation and Bylaws of the Surviving Entity
immediately following the Merger, provided that the Certificate of
Merger shall declare that the name of the Surviving Entity shall be
WiseBuys Stores, Inc.
(b) The directors and officers of the WiseBuys immediately prior to the
Merger shall be the directors and officers of the Surviving Entity
subsequent to the Merger.
SECTION 1.06 RESTRICTIONS ON RESALE
(a) The Merger Shares will not be registered under the Securities Act, or
the securities laws of any state, and cannot be transferred,
hypothecated, sold or otherwise disposed of until: (i) a registration
statement with respect to such securities is declared effective under
the Securities Act, or (ii) SVCC receives an opinion of counsel for
SVCC that an exemption from the registration requirements of the
Securities Act is available.
The certificates representing the Merger Shares which are being issued to
the WiseBuys Shareholders shall contain a legend substantially as follows:
"THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL
A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED EFFECTIVE
UNDER SUCH ACT, OR SEAWAY VALLEY CAPITAL CORPORATION RECEIVES AN
OPINION OF COUNSEL FOR SEAWAY VALLEY CAPITAL CORPORATION THAT AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS
AVAILABLE."
SECTION 1.07 EXCHANGE OF CERTIFICATES.
(a) Exchange of Certificates. After the Effective Time, the WiseBuys
Shareholders shall be required to surrender all their WiseBuys Shares
to the Exchange Agent, and the WiseBuys Shareholders shall be entitled
upon such surrender to receive in exchange therefor certificates
representing the proportionate number of Merger Shares into which the
WiseBuys Shares theretofore represented by the stock transfer forms so
surrendered shall have been exchanged pursuant to this Agreement.
Until so surrendered, each outstanding certificate which, prior to the
Effective Time, represented WiseBuys Shares shall be deemed for all
corporate purposes, subject to the further provisions of this Article
I, to evidence the ownership of the number of whole Merger Shares for
which such WiseBuys Shares have been so exchanged. No dividend payable
to holders of Merger Shares of record as of any date subsequent to the
Effective Time shall be paid to the owner of any certificate which,
prior to the Effective Time, represented WiseBuys Shares, until such
certificate or certificates representing all the relevant WiseBuys
Shares, together with a stock transfer form, are surrendered as
provided in this Article I or pursuant to letters of transmittal or
other instructions with respect to lost certificates provided by the
Exchange Agent.
(b) Full Satisfaction of Rights. All Merger Shares for which the WiseBuys
Shares shall have been exchanged pursuant to this Article I shall be
deemed to have been issued in full satisfaction of all rights
pertaining to the WiseBuys Shares.
(c) Closing of Transfer Books. On the Effective Date, the stock transfer
book of WiseBuys shall be deemed to be closed and no transfer of
WiseBuys Shares shall thereafter be recorded thereon.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SVCC
SVCC and, where applicable, the Merger Sub hereby jointly and severally
represent and warrant to WiseBuys and to the Shareholders of WiseBuys, as of the
date of this Agreement, as of the Closing Date and as of the Effective Time, as
follows:
SECTION 2.01 ORGANIZATION, STANDING AND POWER.
SVCC is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, and has corporate power and
authority to conduct its business as presently conducted by it and to enter into
and perform this Agreement and to carry out the transactions contemplated by
this Agreement. Merger Sub is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, and has corporate
power and authority to enter into and perform this Agreement and to carry out
the transactions contemplated by this Agreement.
SECTION 2.02 SUBSIDIARIES
Except as described specifically in the Quarterly Report on Form 10-QSB
filed by SVCC on August 14, 2007 (the "10-QSB"), SVCC does not have an ownership
interest in any Person. Merger Sub is a recently formed corporation and prior to
the date hereof and through the Effective Date, Merger Sub shall not conduct any
operating business, become a party to any agreements, or incur any liabilities
or obligations.
SECTION 2.03 CAPITALIZATION.
(a) SVCC is authorized to issue Two Billion, Five Hundred and Five Million
(2,505,000,000) shares of capital stock, consisting of Two Billion,
Five Hundred Million (2,500,000,000) shares of Common Stock, par value
$.0001 per share, One Hundred Thousand (100,000) shares of Series A
Preferred Stock, $.0001 per share, One Hundred Thousand (100,000)
shares of Series B Preferred Stock, $.0001 per share, and Four
Million, Eight Hundred Thousand (4,800,000) shares of Preferred Stock,
par value $.0001 per share. As of the date of this Agreement and as of
the Closing Date, there are and will be more than 421,577,063 SVCC
Common Shares and 78,250 Series B Preferred Shares issued and
outstanding. The Series B Preferred Shares are entitled to cast 80% of
the votes at any meeting of the SVCC shareholders.
(b) No SVCC Common Shares or SVCC Preferred Shares have been reserved for
issuance to any Person, and there are no outstanding rights, warrants,
options or agreements for the purchase of SVCC Common or Preferred
Shares except as provided in this Agreement, and except for the
instruments in favor of Cornell Capital Partners, LP granting the
right to convert certain debentures into shares of common stock.
(c) All outstanding SVCC Common Shares are validly issued, fully paid,
non-assessable, not subject to pre-emptive rights and have been issued
in compliance with all state and federal securities laws or other
Applicable Law. The Series C Convertible Shares issuable to the
WiseBuys Shareholders pursuant to the Merger will, when issued
pursuant to this Agreement, be duly and validly authorized and issued,
fully paid and non-assessable.
SECTION 2.04 AUTHORITY FOR AGREEMENT.
The execution, delivery, and performance of this Agreement by each of SVCC
and Merger Sub have been duly authorized by all necessary corporate and
shareholder action, and this Agreement, upon its execution by the Parties, will
constitute the valid and binding obligation of each of SVCC and the Merger Sub,
enforceable against each of them in accordance with and subject to its terms,
except as enforceability may be affected by bankruptcy, insolvency or other laws
of general application affecting the enforcement of creditors' rights. The
execution and consummation of the transactions contemplated by this Agreement
and compliance with its provisions by SVCC and Merger Sub will not violate any
provision of Applicable Law and will not conflict with or result in any breach
of any of the terms, conditions, or provisions of, or constitute a default
under, SVCC's or Merger Sub's Certificate of Incorporation, or either of their
Bylaws, in each case as amended, or, in any material respect, any indenture,
lease, loan agreement or other agreement or instrument to which SVCC is a party
or by which it or any of its properties is bound, or any decree, judgment,
order, statute, rule or regulation applicable to SVCC or Merger Sub.
SECTION 2.05 FINANCIAL CONDITION
The financial statements of SVCC and the additional information regarding
the financial condition of SVCC contained in the 10-QSB are true, correct and
complete in all material respects, are not misleading and do not omit to state
any material fact which is necessary to make the statements and information
contained therein misleading in any material respect. The financial statements
included in the 10-QSB were prepared in accordance with generally accepted
accounting principles and fairly reflect the financial condition of SVCC as of
the dates stated and the results of its operations for the periods presented.
SECTION 2.06 ABSENCE OF CERTAIN CHANGES OR EVENTS.
Since June 30, 2007, except as reported in the 10-QSB and except as
contemplated by this Agreement:
(a) there has not been any Material Adverse Change in the business,
operations, properties, assets, or condition of SVCC;
(b) SVCC has not (i) amended its Certificate of Incorporation, except for
an amendment filed to change the name of the corporation from GS
Carbon Corporation to Seaway Valley Capital Corporation; (ii) 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
outstanding capital stock; (iii) made any material change in its
method of management, operation, or accounting; (iv) entered into any
material transaction; or (v) made any accrual or arrangement for
payment of bonuses or special compensation of any kind or any
severance or termination pay to any present or former officer or
employee;
(c) SVCC has not (i) borrowed or agreed to borrow any funds or incurred,
or become subject to, any material obligation or liability (absolute
or contingent) except liabilities incurred in the ordinary course of
business; (ii) paid any material obligation or liability (absolute or
contingent) other than current liabilities reflected in or shown on
the most recent SVCC balance sheet, and current liabilities incurred
since that date in the ordinary course of business; (iii) sold or
transferred, or agreed to sell or transfer, any material assets,
properties, or rights, or canceled, or agreed to cancel, any material
debts or claims; or (iv) made or permitted any material amendment or
termination of any contract, agreement, or license to which it is a
party.
SECTION 2.07 GOVERNMENTAL AND THIRD PARTY CONSENTS
No consent, waiver, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other federal, state, county, local or other foreign governmental authority,
instrumentality, agency or commission or any third party, including a party to
any agreement with SVCC or Merger Sub, is required by or with respect to SVCC or
Merger Sub in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, except for such
consents, waivers, approvals, orders, authorizations, registrations,
declarations and filings as may be required under (i) applicable securities
laws, or (ii) the DGCL.
SECTION 2.08 LITIGATION
There is no action, suit, investigation, audit or proceeding pending
against, or to the Knowledge of SVCC, threatened against or affecting, SVCC or
the Merger Sub or any of their respective assets or properties before any court
or arbitrator or any governmental body, agency or official.
SECTION 2.09 COMPLIANCE WITH APPLICABLE LAWS.
To the Knowledge of SVCC, the business of each of SVCC and the Merger Sub
has not been, and is not being, conducted in violation of any Applicable Law.
SECTION 2.10 TAX RETURNS AND PAYMENT
SVCC has duly and timely filed all material Tax Returns required to be
filed by it and has duly and timely paid all Taxes shown thereon to be due.
Except as disclosed in financial statements filed with the 10-KSB, there is no
material claim for Taxes that is a Lien against the property of SVCC other than
Liens for Taxes not yet due and payable, none of which is material. SVCC has not
received written notification of any audit of any Tax Return of SVCC being
conducted or pending by a Tax authority, no extension or waiver of the statute
of limitations on the assessment of any Taxes has been granted by SVCC which is
currently in effect, and SVCC is not a party to any agreement, contract or
arrangement with any Tax authority or otherwise, which may result in the payment
of any material amount in excess of the amount reflected on the above referenced
SVCC financial statements.
SECTION 2.11 SECURITY LISTING
SVCC is a fully compliant reporting company under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and all SVCC public filings
required under the Exchange Act have been made. The common stock of SVCC is
listed for quotation on the OTC Bulletin Board. To the Knowledge of SVCC, SVCC
has not been threatened or is not subject to removal of its common stock from
the OTC Bulletin Board.
SECTION 2.12 FINDERS' FEES
SVCC has not incurred, nor will it incur, directly or indirectly, any
liability for brokers' or finders' fees or agents' commissions or investment
bankers' fees or any similar charges in connection with this Agreement or any
transaction contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF WISEBUYS
WiseBuys hereby represents and warrants to SVCC and to Merger Sub, as of
the date of this Agreement and as of the Effective Time (except as otherwise
indicated), as follows:
SECTION 3.01 ORGANIZATION, STANDING AND POWER.
WiseBuys is a privately held corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and has
full corporate power and authority to conduct its business as presently
conducted by it and to enter into and perform this Agreement and to carry out
the transactions contemplated by this Agreement.
SECTION 3.02 CAPITALIZATION.
There are 8,000,000 shares of WiseBuys capital stock authorized, consisting
of 5,000,000 shares of common stock, $.01 par value, 2,200,000 shares of Series
A Preferred Stock, $.01 par value, and 800,000 shares of Preferred Stock, $.01
par value (the "WiseBuys Shares"). As of the date of this Agreement, there are
issued and outstanding 1,833,333 WiseBuys Common Shares and 2,200,000 Series A
Preferred Shares. Each Series A Preferred Share is convertible into one Common
Share. Prior to the Closing, the WiseBuys Certificate of Incorporation will be
amended to increase the number of authorized Preferred Shares to 5,000,000, and
the authorized Series A Preferred Shares to 5,000,000, and 2,716,278 of the new
Series A Shares so created will be issued to the WiseBuys Series A Shareholders.
No WiseBuys Shares have been reserved for issuance to any Person, and there are
no outstanding rights, warrants, options or agreements for the purchase or
issuance of WiseBuys Shares, other than the agreement to issue additional Series
A Shares as described in the preceding sentence. Except as provided herein, no
Person is entitled to any rights with respect to the conversion, exchange or
delivery of the WiseBuys Shares. The WiseBuys Shares have been issued in
compliance with Applicable Law.
SECTION 3.03 AUTHORITY FOR AGREEMENT.
The execution, delivery and performance of this Agreement by WiseBuys has
been duly authorized by all necessary corporate action, and this Agreement
constitutes the valid and binding obligation of WiseBuys, enforceable against
WiseBuys in accordance with its terms, except as enforceability may be affected
by bankruptcy, insolvency or other laws of general application affecting the
enforcement of creditors' rights. The execution and consummation of the
transactions contemplated by this Agreement and compliance with its provisions
by WiseBuys will not violate any provision of Applicable Law and will not
conflict with or result in any breach of any of the terms, conditions, or
provisions of, or constitute a default under, WiseBuys' Certificate of
Incorporation or Bylaws, in each case as amended, or, to the Knowledge of
WiseBuys, in any material respect, any indenture, lease, loan agreement or other
agreement instrument to which WiseBuys is a party or by which it or any of its
properties are bound, or any decree, judgment, order, statute, rule or
regulation applicable to WiseBuys.
SECTION 3.04 GOVERNMENTAL OR THIRD PARTY CONSENT
No consent, waiver, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other federal, state, county, local or other foreign governmental authority,
instrumentality, agency or commission or any third party, including a party to
any agreement with WiseBuys, is required by or with respect to WiseBuys in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby, except for such consents, waivers,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under (i) applicable securities laws, or (ii) the DGCL.
SECTION 3.05 FINANCIAL CONDITION
The financial statements of WiseBuys for the years ended December 31, 2006
and 2005 previously delivered to SVCC have been prepared in accordance with
generally accepted accounting principles and fairly present the financial
condition of Wise Buys at the date presented and the results of operations of
WiseBuys for those two fiscal years.
SECTION 3.06. CORPORATE RECORDS.
All of the books and records of WiseBuys including, without limitation, its
books of account, corporate records, minute book, stock certificate books and
other records are up-to-date, complete and reflect accurately and fairly the
conduct of its business in all material respects since its date of
incorporation. All reports, returns and statements currently required to be
filed by WiseBuys with any government agency with respect to the business and
operations of WiseBuys have been filed or valid extensions have been obtained in
accordance with normal procedures and all governmental reporting requirements
have been complied with.
SECTION 3.07 TAXES.
WiseBuys has filed all Tax Returns that it is required to file with all
governmental agencies, wherever situate, and has paid or accrued for payment all
Taxes as shown on such returns except for Taxes being contested in good faith.
There is no material claim for Taxes that is a Lien against the property of
WiseBuys other than Liens for Taxes not yet due and payable. All Taxes due and
owing by WiseBuys have been paid. WiseBuys is not the beneficiary of any
extension of time within which to file any tax return.
SECTION 3.08 PENDING ACTIONS.
There are no material legal actions, lawsuits, proceedings or
investigations, either administrative or judicial, pending or threatened,
against or affecting WiseBuys or its Officers or Directors that arose out of
their operation of WiseBuys. Neither WiseBuys nor any of its Officers or
Directors is subject to any order, writ, judgment, injunction, decree,
determination or award of any court, arbitrator or administrative, governmental
or regulatory authority or body which would be likely to have a material adverse
effect on the business of WiseBuys.
SECTION 3.09 INTELLECTUAL PROPERTY AND INTANGIBLE ASSETS.
WiseBuys has full legal right, title and interest in and to all of the
intellectual property utilized in the operation of its business. WiseBuys has
not received any written notice that the rights of any other person are violated
by the use by WiseBuys of the intellectual property. None of the intellectual
property has ever been declared invalid or unenforceable, or is the subject of
any pending or, to the knowledge of WiseBuys, threatened action for opposition,
cancellation, declaration, infringement, or invalidity, unenforceability or
misappropriation or like claim, action or proceeding.
SECTION 3.10. COMPLIANCE WITH LAWS.
To the Knowledge of WiseBuys, the business of WiseBuys has not been, and is
not being, conducted in violation of any Applicable Law. WiseBuys holds all the
environmental, health and safety and other permits, licenses, authorizations,
certificates and approvals of governmental authorities (collectively, "Permits")
necessary or proper for the current use, occupancy or operation of its business,
and all of the Permits are now in full force and effect.
SECTION 3.11 FINDERS' FEES
WiseBuys has not incurred, nor will it incur, directly or indirectly, any
liability for brokers' or finders' fees or agents' commissions or investment
bankers' fees or any similar charges in connection with this Agreement or any
transaction contemplated hereby.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS
SECTION 4.01 COVENANTS OF WISEBUYS
WiseBuys covenants and agrees that, during the period from the date of this
Agreement until the Closing Date, WiseBuys shall, except as otherwise disclosed
in this Agreement and other than as contemplated by this Agreement or for the
purposes of effecting the Closing pursuant to this Agreement, conduct its
business as presently operated and solely in the ordinary course, and consistent
with such operation, and, in connection therewith, without the written consent
of SVCC:
(a) shall not amend its Certificate of Incorporation or Bylaws, except to
authorize the additional Preferred Shares as contemplated in Section
3.02;
(b) shall not pay or agree to pay to any employee, officer or director
compensation that is in excess of the current compensation level of
such employee, officer or director other than salary increases or
payments made in the ordinary course of business or as otherwise
provided in any contracts or agreements with any such employees;
(c) shall not merge or consolidate with any other entity or acquire or
agree to acquire any other entity;
(d) shall not sell, transfer, or otherwise dispose of any material assets
required for the operations of WiseBuys' business, except in the
ordinary course of business consistent with past practices;
(e) shall not declare or pay any dividends on or make any distribution of
any kind with respect to the WiseBuys Shares; and
(f) shall use commercially reasonable efforts to comply with and not be in
default or violation under any known law, regulation, decree or order
applicable to WiseBuys' business, operations or assets where such
violation would have a Material Adverse Effect on WiseBuys.
SECTION 4.02 COVENANTS OF SVCC
SVCC covenants and agrees that, during the period from the date of this
Agreement until the Closing Date, SVCC shall not, other than as contemplated by
this Agreement or for the purposes of effecting the Closing pursuant to this
Agreement, conduct its business as presently operated and solely in the ordinary
course, and consistent with such operation, and, in connection therewith,
without the written consent of WiseBuys:
(a) shall not amend its Articles of Incorporation or Bylaws, except to
create the Series C Convertible Shares as provided in Section 1.01;
(b) shall not pay or agree to pay to any employee, officer or director
compensation of any kind or amount;
(c) shall not merge or consolidate with any other entity or acquire or
agree to acquire any other entity;
(d) shall not create, incur, assume, or guarantee any material
indebtedness for money borrowed except in the ordinary course of
business, or create or suffer to exist any mortgage, Lien or other
encumbrance on any of its material assets;
(e) shall not make any material capital expenditure or series of capital
expenditures except in the ordinary course of business;
(f) shall not declare or pay any dividends on or make any distribution of
any kind with respect to SVCC;
(g) shall not issue any additional shares of SVCC capital stock or take
any action affecting the capitalization of SVCC or the SVCC Common or
Preferred Shares; and
(h) shall not grant any severance or termination pay to any director,
officer or any other employees of SVCC.
SECTION 4.03 COVENANTS OF THE PARTIES
(a) Tax-free Reorganization. The Parties intend that the Merger qualify as
a Tax-free "reorganization" under Sections 368(a) of the Code, as
amended, and the Parties will take the position for all purposes that
the Merger shall qualify as a reorganization under such Section. In
addition, the Parties covenant and agree that they will not engage in
any action, or fail to take any action, which action or failure to
take action would reasonably be expected to cause the Merger to fail
to qualify as a Tax-free "reorganization" under Section 368(a) of the
Code, whether or not otherwise permitted by the provisions of this
Agreement;
(b) Announcement. Neither WiseBuys nor SVCC shall issue any press release
or otherwise make any public statement with respect to this Agreement
or the transactions contemplated hereby without the prior consent of
the other Party (which consent shall not be unreasonably withheld),
except as may be required by applicable law or securities regulation.
Upon execution of this Agreement, SVCC shall issue a press release,
after approval thereof by WiseBuys, and file a Current Report on Form
8-K reporting the execution of the Agreement.
(c) Notification of Certain Matters. WiseBuys shall give prompt written
notice to SVCC, and SVCC shall give prompt written notice to WiseBuys,
of:
(i) The occurrence or nonoccurrence of any event the occurrence or
nonoccurrence of which would be reasonably likely to cause any
representation or warranty contained in this Agreement to be
untrue or inaccurate in any material respect at or prior to the
Effective Time; and
(ii) Any material failure of WiseBuys or any of the WiseBuys
Shareholders on the one hand, or SVCC, on the other hand, to
comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder.
(d) Reasonable Best Efforts. Before Closing, upon the terms and subject to
the conditions of this Agreement, the Parties agree to use their
respective reasonable 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 (subject to applicable laws) to consummate and make
effective the Merger and other transactions contemplated by this
Agreement as promptly as practicable including, but not limited to:
(i) The preparation and filing of all forms, registrations and
notices required to be filed to consummate the Share Purchase and
the Merger, including without limitation, any approvals,
consents, orders, exemptions or waivers by any third party or
governmental entity; and
(ii) The satisfaction of the Party's conditions precedent to Closing.
(e) Access to Information
(i) Inspection by WiseBuys. SVCC will make available for inspection
by WiseBuys, during normal business hours and in a manner so as
not to interfere with normal business operations, all of SVCC's
records (including tax records), books of account, premises,
contracts and all other documents in SVCC's possession or control
that are reasonably requested by WiseBuys to inspect and examine
the business and affairs of SVCC. SVCC will cause its managerial
employees and regular independent accountants to be available
upon reasonable advance notice to answer questions of WiseBuys
concerning the business and affairs of SVCC. WiseBuys will treat
and hold as confidential any information it receives from SVCC in
the course of the reviews contemplated by this Section 4.03(e).
No examination by WiseBuys will, however, constitute a waiver or
relinquishment by WiseBuys of its rights to rely on SVCC's
covenants, representations and warranties made herein or pursuant
hereto.
(ii) Inspection by SVCC. WiseBuys will, if requested, make available
for inspection by SVCC, during normal business hours and in a
manner so as not to interfere with normal business operations,
all of WiseBuys' records (including tax records), books of
account, premises, contracts and all other documents in WiseBuys'
possession or control that are reasonably requested by SVCC to
inspect and examine the business and affairs of WiseBuys.
WiseBuys will cause its managerial employees and regular
independent accountants to be available upon reasonable advance
notice to answer questions of SVCC concerning the business and
affairs of WiseBuys. SVCC will treat and hold as confidential any
information it receives from WiseBuys in the course of the
reviews contemplated by this Section 4.03(e). No examination by
SVCC will, however, constitute a waiver or relinquishment by SVCC
of its rights to rely on WiseBuys' covenants, representations and
warranties made herein or pursuant hereto.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01 CONDITIONS PRECEDENT TO THE PARTIES' OBLIGATIONS.
The obligations of the Parties as provided herein shall be subject to each
of the following conditions precedent, unless waived in writing by both SVCC and
WiseBuys:
(a) Consents, Approvals. The Parties shall have obtained all necessary
consents and approvals of their respective boards of directors, and
all consents, approvals and authorizations required under their
respective charter documents, and all material consents, including any
material consents and waivers by the Parties' respective lenders and
other third parties, if necessary, to the consummation of the
transactions contemplated by this Agreement.
(b) Shareholder Approval. This Agreement and the transactions contemplated
hereby shall have been approved by the shareholders of WiseBuys in
accordance with the applicable provisions of the DGCL and its bylaws.
(c) Absence of Certain Litigation. No action or proceeding shall be
threatened or pending before any governmental entity or authority
which, in the reasonable opinion of counsel for the Parties, is likely
to result in a restraint, prohibition or the obtaining of damages or
other relief in connection with this Agreement or the consummation of
the transactions contemplated hereby.
SECTION 5.02 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SVCC
The obligations of SVCC on the Closing Date as provided herein shall be
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions precedent, unless waived in writing by SVCC:
(a) Consents and Approvals. WiseBuys shall have obtained all material
consents, including any material consents and waivers by WiseBuys'
lenders and other third parties, if necessary, to the consummation of
the transactions contemplated by this Agreement.
(b) Representations and Warranties. The representations and warranties by
WiseBuys in Article III herein shall be true and accurate in all
material respects on and as of the Closing Date with the same force
and effect as though such representations and warranties had been made
at and as of the Closing Date, except to the extent that any changes
therein are specifically contemplated by this Agreement.
(c) Performance. WiseBuys shall have performed and complied in all
material respects with all agreements to be performed or complied with
by it pursuant to this Agreement at or prior to the Closing.
(d) Proceedings and Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such
transactions shall be reasonably satisfactory in substance and form to
SVCC and its counsel, and SVCC and its counsel shall have received all
such counterpart originals (or certified or other copies) of such
documents as they may reasonably request.
(e) Material Changes. Except as contemplated by this Agreement, since the
date hereof, WiseBuys shall not have suffered a Material Adverse
Effect, and, without limiting the generality of the foregoing, there
shall be no pending litigation to which WiseBuys is a party which is
reasonably likely to have a Material Adverse Effect on WiseBuys.
(f) SEC Filing. No less than one week prior to the Closing, WiseBuys shall
have delivered to SVCC the financial statements, report of WiseBuys'
independent registered public accountant, and other information
required for inclusion in the Current Report that SVCC will file with
the SEC within four business days after the Closing.
SECTION 5.03 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF WISEBUYS
The obligations of WiseBuys on the Closing Date as provided herein shall be
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions precedent, unless waived in writing by WiseBuys:
(a) Consents And Approvals. SVCC and the Merger Sub shall have obtained
all material consents, including any material consents and waivers of
its respective lenders and other third parties, if necessary, to the
consummation of the transactions contemplated by this Agreement.
(b) Representations And Warranties. The representations and warranties by
SVCC and Merger Sub in Article II herein shall be true and accurate in
all material respects on and as of the Closing Date with the same
force and effect as though such representations and warranties had
been made at and as of the Closing Date, except to the extent that any
changes therein are specifically contemplated by this Agreement.
(c) Performance. SVCC and Merger Sub shall have performed and complied in
all material respects with all agreements to be performed or complied
with by it pursuant to this Agreement prior to or at the Closing.
(d) Proceedings And Documents. All corporate, company and other
proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such
transactions shall be reasonably satisfactory in substance and form to
WiseBuys and its counsel, and WiseBuys and its counsel shall have
received all such counterpart originals (or certified or other copies)
of such documents as they may reasonably request.
(e) Material Changes. Except as contemplated by this Agreement, since the
date hereof, neither SVCC nor the Merger Sub shall have suffered a
Material Adverse Effect and, without limiting the generality of the
foregoing, there shall be no pending litigation to which SVCC or the
Merger Sub is a party which is reasonably likely to have a Material
Adverse Effect on SVCC or the Merger Sub.
(f) Status of SVCC. At the Effective Time of the Merger, SVCC (i) shall be
a fully compliant reporting public company under the Exchange Act, and
shall be current in all of its reports required to be filed under the
Exchange Act, (ii) shall not have been threatened or subject to
delisting from the OTC Bulletin Board, and (iii) except as provided
hereunder, there shall not be outstanding any shares of preferred
stock, nor any options, warrants or rights to acquire capital stock of
SVCC whether for additional consideration or on conversion.
(g) Certificate of Designation. The Board of Directors of SVCC shall have
filed in the Office of the Secretary of State of the State of Delaware
a Certification of Designation of the Series C Convertible Shares in
the form of Schedule 1.01(a) hereto.
(h) Series A Shares. The amendment to the Certificate of Incorporation of
WiseBuys increasing the authorized Preferred Shares and Series A
Shares shall have been filed and the additional Series A Shares
created thereby shall have been issued to the Series A Shareholders.
ARTICLE VI
TERMINATION
SECTION 6.01 TERMINATION.
This Agreement may be terminated and the Merger may be abandoned at any time
prior to the Effective Time by:
(a) The mutual written consent of the Boards of Directors of SVCC and
WiseBuys;
(b) Either SVCC, on the one hand, or WiseBuys, on the other hand, if any
governmental entity or court of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action (which
order, decree, ruling or other action the Parties shall use their
commercially reasonable best efforts to lift), which restrains,
enjoins or otherwise prohibits the Merger or the issuance of the
Series C Convertible Shares as contemplated herein and such order,
decree, ruling or other action shall have become final and
non-appealable;
(c) SVCC, if WiseBuys shall have breached in any material respect any of
its or his representations, warranties, covenants or other agreements
contained in this Agreement, and the breach cannot be or has not been
cured within thirty (30) calendar days after the giving of written
notice by SVCC to WiseBuys;
(d) WiseBuys, if SVCC or the Merger Sub shall have breached in any
material respect any of its representations, warranties, covenants or
other agreements contained in this Agreement, and the breach cannot be
or has not been cured within thirty (30) calendar days after the
giving of written notice by WiseBuys to SVCC; or
(e) Without any action on the part of the Parties if required by
Applicable Law or if the Closing shall not be consummated by October
31, 2007, unless extended by written agreement of SVCC and WiseBuys.
SECTION 6.02 EFFECT OF TERMINATION.
If this Agreement is terminated as provided in Section 6.01, written notice
of such termination shall be given by the terminating Party to the other Party
specifying the provision of this Agreement pursuant to which such termination is
made, this Agreement shall become null and void and there shall be no liability
on the part of SVCC or WiseBuys, provided, however, that (a) the provisions of
Articles VII and VIII hereof shall survive the termination of this Agreement;
(b) nothing in this Agreement shall relieve any Party from any liability or
obligation with respect to any willful breach of this Agreement; and (c)
termination shall not affect accrued rights or liabilities of any Party at the
time of such termination.
ARTICLE VII
CONFIDENTIALITY
SECTION 7.01 CONFIDENTIALITY
SVCC, on the one hand, and WiseBuys, on the other hand, will keep
confidential all information and documents obtained from the other, including
but not limited to any information or documents provided pursuant to Section
4.03(e) hereof (except for any information disclosed to the public pursuant to a
press release authorized by the Parties); and in the event the Closing does not
occur or this Agreement is terminated for any reason, will promptly return such
documents and all copies of such documents and all notes and other evidence
thereof, including material stored on a computer, and will not use such
information for its own advantage, except to the extent that (i) the information
must be disclosed by law, (ii) the information becomes publicly available by
reason other than disclosure by the Party subject to the confidentiality
obligation, (iii) the information is independently developed without use of or
reference to the other Party's confidential information, (iv) the information is
obtained from another source not obligated to keep such information
confidential, or (v) the information is already publicly known or known to the
receiving Party when disclosed as demonstrated by written documentation in the
possession of such Party at such time.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 INDEMNIFICATION BY SVCC
SVCC shall indemnify, defend and hold harmless each of WiseBuys, any
subsidiary or affiliate thereof and each person who is now, or has been at any
time prior to the date hereof or who becomes prior to the Closing, a
shareholder, officer, director or partner of WiseBuys, any subsidiary or
affiliate thereof or an employee of WiseBuys, any subsidiary or affiliate
thereof and their respective heirs, legal representatives, successors and
assigns (the "WiseBuys Indemnified Parties") against all losses, claims,
damages, costs, expenses (including reasonable attorneys' fees), liabilities or
judgments or amounts that are paid in settlement of or in connection with any
threatened or actual third party claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part out of
(i) any material breach of this Agreement by SVCC or any subsidiary or affiliate
thereof, including but not limited to failure of any representation or warranty
to be true and correct at or before the Closing, or (ii) any willful or grossly
negligent act, omission or conduct of any officer, director or agent of SVCC or
any subsidiary or affiliate thereof prior to the Closing, whether asserted or
claimed prior to, at or after, the Closing. Any WiseBuys Indemnified Party
wishing to claim indemnification under this Section 8.01, upon learning of any
such claim, action, suit, proceeding or investigation, shall notify SVCC in
writing, but the failure to so notify shall not relieve SVCC from any liability
that it may have under this Section 8.01, except to the extent that such failure
would materially prejudice SVCC.
SECTION 8.02 INDEMNIFICATION BY WISEBUYS
WiseBuys shall indemnify, defend and hold harmless each of SVCC, any
subsidiary or affiliate thereof and each person who is now, or has been at any
time prior to the date hereof or who becomes prior to the Closing, a
shareholder, officer, director or partner of SVCC, any subsidiary or affiliate
thereof or an employee of SVCC, any subsidiary or affiliate thereof and their
respective heirs, legal representatives, successors and assigns (the "SVCC
Indemnified Parties") against all losses, claims, damages, costs, expenses
(including reasonable attorneys' fees), liabilities or judgments or amounts that
are paid in settlement of or in connection with any threatened or actual third
party claim, action, suit, proceeding or investigation based in whole or in part
on or arising in whole or in part out of (i) any material breach of this
Agreement by WiseBuys, any subsidiary or affiliate thereof or any WiseBuys
Shareholder, including but not limited to failure of any representation or
warranty to be true and correct at or before the Closing, or (ii) any willful or
negligent act, omission or conduct of any officer, director or agent of WiseBuys
or any subsidiary or affiliate thereof prior to the Closing, whether asserted or
claimed prior to, at or after, the Closing. Any SVCC Indemnified Party wishing
to claim indemnification under this Section 8.02, upon learning of any such
claim, action, suit, proceeding or investigation, shall notify WiseBuys in
writing, but the failure to so notify shall not relieve WiseBuys from any
liability that it may have under this Section 8.02, except to the extent that
such failure would materially prejudice WiseBuys.
SECTION 8.03 INDEMNIFICATION OF EXCHANGE AGENT
SVCC and WiseBuys (for the purposes of this Section 8.03, the
"Indemnitors") agree to indemnify the Exchange Agent and his employees and
agents (collectively, the "Indemnitees") against, and hold them harmless of and
from, any and all loss, liability, cost, damage and expense, including without
limitation, reasonable counsel fees, which the Indemnitees, or any of them, may
suffer or incur by reason of any action, claim or proceeding brought against the
Indemnitees, or any one of them, arising out of or relating in any way to the
Exchange Agent's service in such capacity, unless such action, claim or
proceeding is the result of the willful misconduct or gross negligence of any of
the Indemnitees.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 EXPENSES
Except as contemplated by this Agreement, all costs and expenses incurred
in connection with this Agreement and the consummation of the transactions
contemplated by this Agreement shall be paid by the Party incurring such
expenses.
SECTION 9.02 APPLICABLE LAW
This Agreement shall be governed by the laws of the State of Delaware,
without giving effect to the principles of conflicts of laws thereof, as applied
to agreements entered into and to be performed in such state.
SECTION 9.03 NOTICES.
All notices and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given or made as follows:
(a) If sent by reputable overnight air courier (such as Federal Express),
2 business days after being sent;
(b) If sent by facsimile transmission, with a copy mailed on the same day
in the manner provided in clause (a) above, when transmitted and
receipt is confirmed by the fax machine; or
(c) If otherwise actually personally delivered, when delivered.
All notices and other communications under this Agreement shall be sent or
delivered as follows:
If to SVCC, to:
Seaway Valley Capital Corporation
Attn.: Xxxxxx X. Xxxxxxxxxx
00-00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to WiseBuys, to:
WiseBuys Stores, Inc.
Attn.: Xxxxxx X. Xxxxxxxxxx
00-00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each Party may change its address by written notice in accordance with this
Section.
SECTION 9.04 ENTIRE AGREEMENT.
This Agreement (including the documents and instruments referred to in this
Agreement) contains the entire understanding of the Parties with respect to the
subject matter contained in this Agreement, and supersedes and cancels all prior
agreements, negotiations, correspondence, undertakings and communications of the
Parties, oral or written, respecting such subject matter.
SECTION 9.05 ASSIGNMENT.
Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned by any of the Parties (whether by
operation of law or otherwise) without the prior written consent of the other
Parties; provided that in no event may the right to indemnification provided by
Article VIII hereto be assigned by any of the Parties, with or without consent,
except by operation of law. Subject to the immediately foregoing sentence of
this Section 9.05, this Agreement will be binding upon, inure to the benefit of
and be enforceable by, the Parties and their respective successors, assigns,
heirs and representatives.
SECTION 9.06 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which shall be considered one and
the same agreement.
SECTION 9.07 NO THIRD PARTY BENEFICIARIES.
Except as expressly provided by this Agreement, nothing herein is intended
to confer upon any person or entity not a Party to this Agreement any rights or
remedies under or by reason of this Agreement.
SECTION 9.08 RULES OF CONSTRUCTION.
The Parties agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
date first above written.
SEAWAY VALLEY CAPITAL CORPORATION
By: /S/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
SEAWAY VALLEY ACQUISITION CORP.
By: /S/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
WISEBUYS STORES, INC.
By: /S/ Xxxxxx XxXxxxxxx
----------------------------------------
Name: Xxxxxx XxXxxxxxx
Title: President
and:
By: /S/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Treasurer/CFO
