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EXHIBIT 12A
ACQUISITION AGREEMENT BY AND BETWEEN
XXXXXXXXX00.XXX, CORPORATION
(FORMERLY UNION CHEMICAL CORP.)
A NEVADA CORPORATION
AND
XXXXXXXXX00.XXX. INC.
(AN ARIZONA CORPORATION)
This Acquisition Agreement dated as of the 15th day of June, 1999 among
XxxXxxxxx00.xxx (formerly Union Chemical Corp.), a Nevada corporation (the
"Company") and XxxXxxxxx00.xxx Inc., an Arizona corporation (the "Owner") and
its shareholders, (the "Selling Shareholders").
Whereas, the respective Boards of Directors of the business entities party to
this Acquisition Agreement, with the satisfaction of certain conditions, have
determined to effect a business transaction by and among the parties to this
Acquisition Agreement through the tax free exchange of securities for certain
assets and rights between the shareholders of the Owner and the Company; and,
Whereas, the parties have determined to set forth the terms and conditions upon
which the aforementioned business transaction shall be completed in this
Acquisition Agreement.
Now, Therefore, in consideration of the mutual promises, covenants and
conditions contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Terms. As used in the Acquisition Agreement, the following terms shall
have the following meanings:
a. "Company" shall mean XxxXxxxxx00.xxx Corporation, (formerly
Union Chemical Corp. a publicly held Nevada corporation which is
non-reporting under the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934.
b. "Owner" shall mean XxxXxxxxx00.xxx, Inc., a privately held
Arizona corporation.
c. "Company Common Stock" shall mean the $.001 par value common
stock of XxxXxxxxx00.xxx Corporation.
d. "Selling Shareholders" shall mean the individual shareholders
of Owner as fully set forth in Exhibit A.
e. "Effective date" shall mean the closing date.
f. "Acquisition Agreement" shall mean this Acquisition
Agreement.
g. "Closing Date" shall mean the date of execution of this
Acquisition Agreement and satisfaction of the conditions set
forth in Article X hereof.
h. "Property" shall mean the trademarked domain name of
XxxXxxxxx00.xxx and the exclusive license in perpetuity to the
XxxXxxxxx00.xxx Inc., (an Arizona corporation) business, business
blueprint, business hardware and software together
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with all property necessary and incidental thereto and the
contract with Project Finance Associates Inc. for consulting
services.
ARTICLE II
COMPANY ACQUISITION OF OWNER
2.1 Tax Free Acquisition. A tax free Plan of Acquisition pursuant to the
provisions of Section 368 of the Internal Revenue Code of 1986, as amended,
is hereby adopted to effectuate the following:
a. Subject to the terms and conditions hereinafter set forth on the Effective
Date of the Acquisition, and in the manner hereinafter provided: (i) the
COMPANY shall acquire the trademarked domain name of XxxXxxxxx00.xxx from
the Owner together with an exclusive license in perpetuity for the
blueprint and know how for the business of the Owner in exchange for
COMPANY Common Stock: (ii) to effect the acquisition, COMPANY shall pay the
Selling Shareholders 20,720,000 shares of COMPANY common stock in exchange
for all Property and the 3 year non-compete agreements with the Selling
Shareholders.
b. Supplemental Corporate Action.
COMPANY, Selling Shareholders and OWNER, respectively, shall take, or cause
to be taken, all such actions as may be necessary or appropriate in order
to effectuate the transactions contemplated hereby. In the event at any
time after the Effective Date of the Acquisition that any further action is
necessary or desirable to carry out the purpose of the Acquisition
Agreement and to vest COMPANY with full title to all of the Property.
2.2 Federal Securities Laws Exemption. The parties hereto intend that the
COMPANY Common Stock to be issued to the Selling Shareholders shall be
exempt from the registration requirements of the Securities Act of 1933, as
amended, and pursuant to Section 4(2) and/or Section 3(b) thereof, and the
rules and regulations promulgated thereunder.
2.3 Effective Date of the Acquisition for Accounting Purposes. The transactions
contemplated by this Acquisition Agreement shall be effective as of the
Effective Date of the Acquisition for accounting and all other purposes to
the extent permissible by law.
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ARTICLE III
INVESTMENT REPRESENTATIONS
As a condition to the issuance by COMPANY to the Selling Shareholders
of share certificates for COMPANY common stock, the Selling
Shareholders shall each execute and deliver to COMPANY an investment
letter containing the investment representations contained in Section
3.1 and acknowledging receipt of the disclosure materials referred to
in Section 3.2.
3.1 Investment Representation to be given by Selling Shareholders to COMPANY
Selling Shareholders hereby agree to execute and deliver on the Effective
Date of Acquisition an investment letter and acknowledgment in a form
substantially as follows:
a. Selling Shareholder's are acquiring COMPANY common stock for his/its
own account for the purpose of investment, and not with view to, or
for sale in connection with, any distribution thereof;
and
b. Selling Shareholder: (i) has such knowledge and experience in
financial and business matters that he/it is capable of evaluating the
merits and risks of his proposed investment in COMPANY common stock:
or (ii) has been advised by attorneys, accountants or other
representatives having such knowledge and experience. Selling
Shareholder acknowledges that his attorneys, accountants and other
representatives, had, prior to his actions as Selling Shareholder in
voting upon or otherwise consenting to the Acquisition, the
opportunity to ask questions of, and to receive answers from COMPANY
concerning COMPANY, its affiliates and their business and financial
condition; and
c. Selling Shareholder understands and acknowledges that shares of
COMPANY common stock to be delivered to him/it pursuant to the
provisions of Article II and Article III of this Acquisition Agreement
will be "restricted securities" within the meaning of the Securities
Act of 1933, as amended (the "1933 Act"), and agrees that the
certificates therefore shall bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY NOT BE TRANSFERRED WITHIN TWELVE MONTHS
AFTER ISSUANCE UNLESS COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT, OR A NO ACTION LETTER FROM THE
SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO SUCH
TRANSFER MEETING THE REQUIREMENTS OF RULE 144 OF THE
SECURITIES AND EXCHANGE COMMISSION OR IS ACCOMPANIED BY AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER TO THE EFFECT
THAT ANY SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
d. Selling Shareholders understand and acknowledge that shares of the
COMPANY common stock to be delivered pursuant to the provisions of
this Acquisition Agreement will not have been registered under the
1933 Act and, accordingly Selling Shareholders recognize that he/it
may be required to bear the economic risk of his/its investment until
such shares are registered. Selling Shareholders agree on
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behalf of himself/itself, and his heirs, executors, successors and
assigns, that he/it will only sell, transfer, pledge or
hypothecate any of the COMPANY common stock to be acquired by
him/it under the provisions of this Acquisition Agreement pursuant
to an effective registration statement under the 1933 Act, in a
transaction wherein registration under the 1933 Act is not
required or after the anniversary date hereof. Selling
Shareholders understand that COMPANY has no obligation to register
such COMPANY common stock under the 1933 Act.
3.1 Disclosure Materials
COMPANY has distributed to the Selling Shareholders or a representative of
the Selling Shareholders and given each the opportunity to review, prior
to their execution of and closing under this Acquisition Agreement: (i) a
copy of the Articles of Incorporation, (ii) copy of the bylaws, (iii) copy
of the most recent audit December 31, 1998 and (iv) such other data in the
possession of COMPANY regarding the business and or finances of COMPANY as
the Selling Shareholders have reasonably requested.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF COMPANY
COMPANY, as of the Effective Date of the Acquisition hereof, represents
and warrants as follows:
4.1 Full Disclosure. None of the representations and warranties made by
COMPANY herein, or in any exhibit, certificate of memorandum, furnished or
to be furnished by COMPANY, or on its behalf by officers and directors of
COMPANY, contains or will contain any untrue statement of material fact,
or omit any material fact the omission of which would be misleading.
4.2 No Governmental Consents. No consent, authorization or approval of,
exemption by, or filing with, any domestic governmental or administrative
authority, or any court, is required to be obtained or made by COMPANY in
connection with the execution, delivery and performance of this
Acquisition Agreement or the consummation of the transactions contemplated
hereby.
4.3 Finder. There is no firm, corporation, agency or other person that is
entitled to a finder's fee or any type of brokerage commission in relation
to or in connection with the transactions contemplated by this Acquisition
Agreement as a result of any agreement or understanding with COMPANY.
4.4 Organization and Good Standing. COMPANY is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Nevada and has full corporate power and authority to conduct its business
as now conducted and to own or lease and operate the assets and properties
now owned or leased and operated by it. COMPANY is duly qualified to do
business and is in good standing in each jurisdiction in which the nature
of its business or the character of its properties requires such
qualifications or will file to become so qualified immediately upon the
closing of this transaction.
4.5 Capitalization of COMPANY The total authorized capital stock of COMPANY
consists of 24,000,000 shares of common stock, $.001 par value, which is
being amended to authorize 100,000,000 shares of common stock and
2,000,000 shares of Preferred Stock, $10.00 par value, of which as of June
10, 1999, 2,081,840 shares of common stock outstanding: all of
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such issued and outstanding shares have been duly authorized and validly
issued, and are fully paid and non-assessable, It is understood and agreed
that COMPANY, as an operating Company may from time to time issue
additional shares to provide working capital, acquisition payments and
such other matters as the board of directors shall decide and authorize.
There are no preemptive rights with respect to any prior issuance of any
shares of the capital stock of COMPANY.
4.6 Options Warrants and Other Conversion Rights. COMPANY has no warrants or
options outstanding as set forth in the Certificate of Outstanding Shares.
4.7 No Restrictions on Securities. COMPANY is not a party to any written or
oral agreement:
a. creating rights in any person with respect to shares of the
capital stock of COMPANY, excepting the shares due to Project
Finance Associates Inc.; or
b. relating to voting of shares of the capital stock of the COMPANY.
4.8 Directors and Officers. Immediately prior to the Effective Date of the
Acquisition, names, addresses, and title of all officers and directors of
COMPANY are as set forth on Exhibit A hereto:
4.9 Books and Records.
a. The books of account and other financial records of COMPANY are,
in all material respects, complete and correct and are maintained
in accordance with good business practices.
b. The minute books of COMPANY contain accurate records of all
meetings and accurately reflect all other corporate action of the
shareholders and directors and any committees of directors of
COMPANY
c. Financial Statements. COMPANY has delivered their audit for the
period ending December 31, 1998.
4.10 Absence of Certain Events. As of the Effective Date of the Acquisition
Agreement, COMPANY has not:
a. Amended its Certificate of Incorporation or By-laws;
b. Changed its authorized capital stock or issued or sold, or
purchased, redeemed or otherwise acquired, or issued any rights
to subscribe for, or warrants to purchase, or entered into any
agreement, commitment or obligation (including, without
limitation, any convertible securities) to issue, sell, purchase,
redeem or otherwise acquire, any share of its capital stock, or
made any declaration or any payment or distribution of any
dividend or any other distribution with respect to its capital
stock:
c. Incurred any liabilities, other than liabilities incurred in the
ordinary course of business consistent with past practice, or
discharged or satisfied any lien or encumbrance, or paid any
liabilities, other than in the ordinary course of business
consistent with past practice, or failed to pay or discharge when
due any liabilities the failure to pay or discharge of which has
caused or may cause any material damage or risk of material loss
to it or its assets or properties;
d. Sold, assigned or transferred any of its assets or properties
except in the ordinary course of business consistent with past
practice.
e. Created, incurred, assumed or guaranteed any indebtedness for
money borrowed, or mortgaged, pledged or subjected to any lien,
pledge, mortgage, security interest, conditional sales contract
or other encumbrance of any nature whatsoever any of its assets
or properties, other than the liens, if any , of current taxes
not yet due and payable;
f. Changed any of the accounting principles followed by it or the
methods of applying such principles; or
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g. Entered into any transaction other than in the course of ordinary
business consistent with past practice or any other material
transaction.
4.11 Taxes and Tax Returns. COMPANY has duly made all deposits required by law
to be made with respect to employee's withholding taxes. COMPANY has duly
filed with all appropriate governmental agencies and bodies, whether federal,
state or local, all income, sales, license, franchise, excise, gross receipts,
employment and payroll-related and real and personal property reflect the
taxes owed by COMPANY for the periods covered thereby, and COMPANY has paid,
or established adequate liabilities or reserves for the payment of, all taxes
shown to be due on such returns.
4.12 Legal Proceedings Etc. There are no disputes, claims, actions, suits,
proceedings, arbitrations or investigations, either administrative or
judicial, pending or threatened or contemplated, by or against or
affecting COMPANY or its business or any of its assets, properties or
prospects, or the transactions contemplated by this Acquisition Agreement,
at law or in equity or otherwise, before or by any court or governmental
agency or body, domestic or foreign, or before an arbitrator of any kind
which, if determined adversely to COMPANY, would materially adversely
affect COMPANY; nor do any facts exist which could give rise to any such
dispute, claim, action, suit, proceeding, arbitration or investigation
affecting COMPANY or its business or any of its assets, properties or
prospects or the transactions contemplated by this Agreement.
4.13 No Third Party Options. There are no existing contracts or other rights
with, to or in any person to acquire any of the assets or properties or
any interest therein of COMPANY, except for those contracts entered into
in the normal course of business consistent with business practices.
4.14 Delivery of Documents. COMPANY has delivered to OWNER true, correct and
complete copies of its Certificate of Incorporation, and all amendments
thereto, and the Bylaws, as amended.
4.15 Authority and Compliance. COMPANY has full corporate power and lawful
authority to execute and deliver this Agreement. The consummation and
performance by COMPANY of the transactions contemplated by this Agreement
have been duly and validly authorized by all necessary corporate and other
proceedings. This Agreement has been duly and validly executed and
delivered on behalf of COMPANY and constitutes a valid obligation of
COMPANY, enforceable in accordance with its terms. No consent,
authorization or approval of, exemption by or filing with, any domestic
governmental or administrative authority, or any court, is required to be
obtained or made by COMPANY in connection with the execution, delivery and
performance of this Agreement by COMPANY. Such delivery and performance
will not conflict with or result in the breach or violation of any term or
provisions of, or constitute a default under, the Articles of
Incorporation or Bylaws of COMPANY, or conflict with or result in the
breach or violation of any term or provision of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, note agreement or
other material agreement or instrument to which COMPANY is a party or by
which it is a party or by which it is bound, or any law, order, writ,
injunction, decree, rule or regulation of any court or any governmental
agency or body.
4.16 Indemnification. COMPANY agrees to indemnify, defend and hold OWNER and
each of the Selling Shareholders harmless against and in respect of any
and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest,
penalties, and reasonable attorney's fees, that OWNER or any of such
Selling Shareholders shall incur or suffer, which arise out of or result
from or relate to any breach of, or failure by COMPANY to perform any of
its representations or warranties
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contained in this Agreement or in any schedule, certificate, exhibit or
other instrument furnished or to be furnished by COMPANY under this
Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OWNER
OWNER hereby, as of the Effective Date of the Acquisition represents and
warrants as follows:
5.1 Full Disclosure. None of the representations and warranties made by
OWNER herein, or in any exhibit, certificate of memorandum, furnished or
to be furnished by OWNER, or on its behalf by officers and directors of
OWNER, contains or will contain any untrue statement of material fact, or
omit any material fact the omission of which would be misleading.
5.2 No Governmental Consents. No consent, authorization or approval of,
exemption by, filing with, any domestic governmental or administrative
authority, or any court, is required to be obtained or made by OWNER in
connection with the execution, delivery and performance of this
Acquisition Agreement or the consummation of the transactions contemplated
hereby.
5.3 Finder. There is no firm, corporation, agency or other person that is
entitled to a finder's fee or any type of brokerage commission in relation
to or in connection with the transactions contemplated by this Acquisition
Agreement as a result of any agreement or understanding with OWNER.
5.4 Organization and Good Standing. OWNER is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Arizona and has full corporate power and authority to conduct its business
as now conducted and to own or lease and operate the assets and properties
now owned or leased and operated by it. OWNER is duly qualified to do
business and is in good standing in each jurisdiction in which the nature
of its business or the character of its properties requires such
qualifications.
5.5 The Property of OWNER. The Property of the Owner is not subject to any
encumbrance, lien or claim by any third party.
5.6 Options, Warrants and Other Conversion Rights. OWNER has no options or
warrants outstanding.
5.7 No Restrictions on Securities. OWNER is not a party to any written or
oral agreement:
a. creating rights in any person with respect to shares of the
capital stock of OWNER; or
b. relating to voting of shares of the capital stock of OWNER except
for the Consulting Contract with Project Finance Associates,
Inc. which contract is being assigned to the Company.
5.8 Absence of Certain Events. As of the Effective Date of the
Acquisition Agreement, OWNER has not:
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a. Amended its Certificate of Incorporation or By-laws;
b. Changed it authorized capital stock or issued or sold, or
purchased, redeemed or otherwise acquired, or issued any rights
to subscribe for, or warrants to purchase, or entered into any
agreement, commitment or obligation (including, without
limitation, any convertible securities) to issue, sell, purchase,
redeem or otherwise acquire, any share of its capital stock, or
made any declaration or any payment or distribution of any
dividend or any other distribution with respect to its capital
stock:
c. Incurred any liabilities, other than liabilities incurred in the
ordinary course of business consistent with past practice , or
discharged or satisfied any lien or encumbrance, or paid any
liabilities, other than in the ordinary course of business
consistent with past practice, or failed to pay or discharge when
due any liabilities the failure to pay or discharge of which has
cause or may cause any material damage or risk of material loss
to it or its assets or properties;
d. Sold, assigned or transferred any of its assets or properties
except in the ordinary course of business consistent with past
practice.
e. Created, incurred, assumed or guaranteed any indebtedness for
money borrowed, or mortgaged, pledged or subjected to any lien,
pledge, mortgage, security interest, conditional sales contract
or other encumbrance of any nature whatsoever any of its assets
or properties, other than the liens, if any , of current taxes
not yet due and payable;
f. Changed any of the accounting principles followed by it or the
methods of applying such principles; or
g. Entered into any transaction other than in the course of ordinary
business consistent with past practice or any other material
transaction.
5.9 Taxes and Tax Returns. OWNER has duly made all deposits required by law to
be made with respect to employees withholding taxes. OWNER has duly filed with
all appropriate governmental agencies and bodies, whether federal, state or
local, all income, sales, license, franchise, excise, gross receipts, employment
and payroll-related and real and personal property reflect the taxes owned by
OWNER for the periods covered thereby, and OWNER has paid, or established
adequate liabilities or reserves for the payment of, all taxes shown to be due
on such returns.
5.10 Legal Proceedings, Etc. There are no disputes, claims, actions, suits,
proceedings, arbitration's or investigations, either administrative or judicial,
pending or threatened or contemplated, by or against or affecting OWNER or its
business or any of its assets, properties or prospects, or the transactions
contemplated by this Acquisition Agreement, at law or in equity or otherwise,
before or by any court or governmental agency or body, domestic or foreign, or
before an arbitrator of any kind which, if determined adversely to OWNER, would
materially adversely affect OWNER; nor do any facts exist which could give rise
to any dispute, claim, action, suit, proceeding, arbitration or investigation
affecting OWNER or its business or any of its assets, properties or prospects or
the transactions contemplated by this Agreement.
5.11 No Third Party Options. There are no existing contracts or other rights
with, to or in any person to acquire any of the assets or properties or any
interest therein of OWNER, except for those contracts entered into in the normal
course of business consistent with business practices.
5.12 Delivery of Documents. OWNER has delivered to COMPANY true, correct and
complete copies of its Articles of Incorporation, all amendments thereto, its
Bylaws,
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unaudited financial statements for the period ending _________ 1999,
minutes of the board of directors approving the Acquisition Agreement.
5.13 Authority and Compliance. OWNER has full corporate power to execute
and deliver this Acquisition Agreement. The consummation and performance
by OWNER of the transactions contemplated by this Acquisition Agreement
have been duly and validly authorized by all necessary corporate and other
proceedings. This Agreement has been duly and validly executed and
delivered on behalf of OWNER and constitutes a valid obligation of OWNER,
enforceable in accordance with its terms. No consent, authorization or
approval of, exemption by, or filing with, any domestic governmental or
administrative authority, or any court, is required to be obtained or made
by OWNER in connection with the execution, delivery and performance of
this Agreement or the consummation of the transaction contemplated hereby.
The execution, delivery, consummation and performance of this Agreement by
OWNER will not conflict with or result in the breach or violation of any
term or provision of, or constitute a default under, the Articles of
Incorporation or Bylaws of OWNER, or conflict with or result in the breach
or violation of any term or provision of, or constitute a default under,
any statute, indenture, mortgage, deed of trust, note agreement or other
material agreement or instrument to which OWNER is a party or by which it
is bound, or any law, order, writ, injunction, decree, rule or regulation
of any court or any governmental agency or body.
5.14 Indemnification. OWNER and the Selling Shareholders agree to
indemnify, defend and hold harmless COMPANY against and in respect of any
and all claims, demands, losses, costs and expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest,
penalties, and reasonable attorney's fees, that COMPANY shall incur or
suffer, which arises out of, result from or relate to any breach of, or
failure by OWNER to perform any of its representations, warranties,
covenants or agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by OWNER under
this Agreement provided, however, that any demand for indemnification
hereunder shall be made in writing to all indemnitors within in one year
after the date hereof, or be forever barred.
ARTICLE VI
COVENANTS
6.1 Investigative Rights. Up to and including the date of closing of this
Agreement, each party shall provide to the other, and such others party's
counsel, accountants, auditors, and other authorized representatives, full
access during normal business hours and upon reasonable advance written
notice to all of each party's property, books, contracts, commitments, and
records for the purpose of examining the same, Each party shall furnish
the other party with all information concerning such party's affairs as
may reasonably be requested.
6.2 Conduct of Business. Prior to the Effective Date of the Agreement, OWNER
shall conduct its business in the normal course and shall not sell,
pledge, or assign any assets, without the prior written approval of
COMPANY, except in the regular course of business. OWNER shall not amend
its Certificate or Articles of Incorporation, or Bylaws, declare any
dividends, redeem or sell stock or other securities, acquire or dispose of
fixed assets, change employment terms, enter into any material or
long-term contract, guarantee obligations of any third party, settle or
discharge any balance sheet receivable for less that its stated amount,
pay more on any liability than its stated amount, or enter into any other
transaction other than in the regular course of business.
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ARTICLE VII
CLOSING
7.1 Closing. The closing under this Agreement shall be held at the offices of
COMPANY at 0000 Xxxxxxxx Xxxxxx, Xxxxx 0 Xxxxxxx, Xxx Xxxx, xx at such
other place as the parties may agree and at such date as shall be mutually
agreed upon by the parties. Unless otherwise agreed, the rights,
liabilities, obligations and duties of performance of the respective
parties to this Agreement shall automatically terminate, without liability
to any of the respective parties hereto, if the closing does not occur
hereunder prior to June 30, 1999.
7.2 Deliver of Documentation. At the closing, the following documents, in
form reasonably acceptable to the parties and their respective counsel,
shall be delivered to the respective parties
a. A COMPANY Officer's Certificate, dated the Closing
Date that all representations, warranties, covenants and
conditions set forth in this Agreement on behalf of
COMPANY are true and correct as of, or have been fully
performed and complied with by, the Closing Date; and
b. A OWNER officer's certificate, dated the Closing Date
that all representations, warranties, covenants and
conditions set forth in this Agreement on behalf of OWNER
are true and correct as of, or have been fully performed
and complied with by, the Closing Date; and
c. A signed consent and or minutes of the Directors of
COMPANY approving the Acquisition Agreement and each
matter to be approved by the Directors of COMPANY under
this Agreement.
d. A signed consent and or minutes of the
Directors of OWNER and each matter to be approved by the
Directors of OWNER under this Agreement; and
e. An affidavit of Company's president that the shares
of COMPANY common Stock to be issued to the Selling
Shareholders, pursuant to this Agreement will, upon
issuance, be duly and validly authorized and issued and
will be fully paid and non-assessable; and
f. Original COMPANY certificates evidencing 20,720,000
shares of COMPANY common stock in the name of the parties
as set forth in Exhibit B, which certificates shall bear
the appropriate "restrictive legend" under the Securities
Act of 1933, as amended; and
g. This Acquisition Agreement executed in triplicate by
each of the respective parties hereto.
7.3 Escrow. The parties to this Acquisition Agreement hereby nominate and
appoint W. Xxxxxx Xxxxxxx Attorney at Law as the Escrow Agent under this
Agreement. It is understood and acknowledged by the parties that such law
firm is counsel to COMPANY in the subject transaction and has agreed to
act in the capacity as Escrow Agent at the request and with the express
consent of all parties hereto. The Escrow Agent is charged and instructed
by the parties to collect each and every document set forth under Section
7.2 hereof. Once the Escrow Agent receives all such documents, all
conditions of closing hereunder shall have
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occurred and the Escrow Agent is instructed and directed to deliver all
documents received to the appropriate parties. Each of the parties to this
Agreement hereby undertake to use their best efforts to cause all
documentation referenced hereunder to be delivered to effect a closing.
On June 30,1999, if the Escrow Agent has not received all the documents
set forth in Section 7.2, then unless otherwise notified in writing by both
parties the Escrow Agent is hereby authorized, directed and instructed to return
to each of the respective parties of this Agreement the documents previously
delivered by said parties to the Escrow Agent.
ARTICLE VIII
REMEDIES
8.1 Disputes. Any dispute that might arise over the enforcement, interpretation
or execution of this Agreement and which is not amicably settled will be
submitted to arbitration in Buffalo, New York or Scottsdale, Arizona before
a panel of arbitrators selected as follows: within 10 days of demand by a
party to this Agreement for arbitration, COMPANY and OWNER will each select
one (1) arbitrator and those two arbitrators will select a third arbitrator
and those three (3) persons shall constitute the panel of arbitrators. The
arbitrators will conduct the hearings on continuous business days, and
their decisions will be by majority vote. All costs of the arbitrators will
be shared equally, but the arbitrators are authorized to award costs and
counsel fees to the prevailing party, if necessary. All documents to be
brought into evidence will be produced within 10 days of notice of request
for arbitration.
8.2 Costs. If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorney's fees and other costs
incurred in that action or proceeding, in addition to any other relief to
which it or they may be entitled.
8.3 Termination. In addition to the other remedies, any of the parties hereto
may on the Closing Date terminate this Agreement, without liability:
a. If the respective Boards of Directors of the parties
shall consent to the termination.
b. If any bona fide action or proceeding shall be
pending against any of the parties hereto on the Closing
Date that could result in a judgment, decree or order
rendering this Agreement null, void, unenforceable or
against public policy or if any agency of the federal or
of any state government shall have objected in writing
at or before the Closing Date to this acquisition or to
any other action required by or in connection with the
Agreement.
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ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations Warranties, Covenants and Agreements. The
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Effective Date of the Acquisition.
9.2 Amendments. This Agreement cannot be altered or otherwise amended
except pursuant to an instrument in writing signed by each party hereto.
This Agreement shall be binding upon, and subject to the terms of the
foregoing sentence, inure to the benefit of the parties, their successors,
legal representatives and assigns.
9.3 Notices. Any notice, request, instruction or other document to be
given hereunder by any party to any of the other parties shall be in
writing and shall be deemed to have been duly given when delivered
personally or 5 days after dispatch by registered or certified mail,
postage prepaid, return receipt requested, to the party to whom the same
is so given or made:
If to COMPANY addressed to:
J. Xxxxxx Xxx
0000 Xxxxxxxx Xxxxxx
Xxxxx 0
Xxxxxxx, XX 00000
If to OWNER to:
Xxxx Xxxxxx
0000 X. Xxxxxxxx
Xxxxx 000
Xxxxx 0
Xxxxxxxxxx, XX 00000
or at such other address as the one party shall specify to the other party
in writing.
9.4 Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, each party hereto shall bear the expenses
incurred by it in connection with the transactions contemplated hereby.
9.5 Entire Agreement. This Agreement and the Exhibits and Schedules which
are a part hereof and the other writings and agreements specifically
identified herein contain the entire agreement between the parties with
respect to the transactions contemplated herein and supersede all previous
written or oral negotiations, commitments and understandings.
9.6 Waivers, Remedies. Any waiver must be in writing. A waiver of any
breach or failure to enforce any of the terms or conditions of this
Agreement shall not in any way affect, limit or waive a party's rights at
any time to enforce strict compliance thereafter with every other term or
condition of this Agreement. All remedies under this Agreement shall be
cumulative and not alternative.
9.7 Counterparts and Headings. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of
which shall constitute on together, shall constitute on and the same
document. All headings, the cover page, and the
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index of this Agreement are inserted for convenience of reference only and
shall not affect its meaning or interpretation.
9.8 Severability. If and to the extent that any court of competent
jurisdiction holds any provision of this Agreement to be invalid or
unenforceable, such holding shall in no way affect the validity of
the remainder of this Agreement.
9.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Acquisition
Agreement as of the day and year first above written.
COMPANY
XXXXXXXXX00.XXX, CORPORATION
Formerly Union Chemical Corp.
By:
J. Xxxxxx Xxx, President
OWNER
XXXXXXXXX00.XXX. INC.
(An Arizona Corporation)
By
President
SELLING SHAREHOLDERS
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