AGREEMENT AND PLAN OF REORGANIZATION
AND STOCK PURCHASE AGREEMENT
by and among
SPECTRUM PHARMACEUTICAL CORP.
[Name to be changed to WorldWideWeb Xxxxxxxxx.xxx, Inc.]
as Acquiror
and
HALTER CAPITAL CORPORATION
as principal shareholder of
SPECTRUM PHARMACEUTICAL CORPORATION
WORLDWIDEWEB INSTITUTE, INC.
as Acquiree
and
the Shareholders of
WORLDWIDEWEB INSTITUTE, INC.
----------
July 2, 1999
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION and Stock Purchase Agreement
(the "Agreement") is made and entered into this 2nd day of July, 1999 by and
among SPECTRUM PHARMACEUTICAL CORP., (name to be changed to WorldWideWeb
Xxxxxxxxx.xxx, Inc.), a Florida corporation (hereinafter referred to as
"Spectrum"), HALTER CAPITAL CORPORATION, a Texas Corporation (hereinafter
referred to as Halter), WORLDWIDEWEB INSTITUTE, INC., a Florida corporation
(hereinafter referred to as the "Company"), and the shareholders of the Company
(hereinafter referred to as the "Shareholders").
RECITALS:
A. The Shareholders own all of the issued and outstanding shares of the
capital stock of the Companyas set forth on Exhibit A hereto.
X. Xxxxxx will be the beneficial owner of 1,925,000 shares of Common
Stock of Spectrum at the Closing Date.
C. Spectrum is willing to acquire all of the issued and outstanding
capital stock of the Company, making the Company a wholly-owned
subsidiary of Spectrum, and the Shareholders desire to exchange all
of their shares of the Company's capital stock for shares of
Spectrum's authorized but unissued shares of Common Stock as
hereinafter provided.
D. It is the intention of the parties hereto that: (i) Spectrum shall
acquire all of the issued and outstanding capital stock of the
Company in exchange solely for 5,025,000 shares of Spectrum's
authorized but unissued Common Stock set forth below (the
"Exchange"); (ii) the Exchange shall qualify as a tax-free
reorganization under Section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended, and related sections thereunder; and (iii)
the Exchange shall qualify as a transaction in securities exempt
from registration or qualification under the Securities Act of 1933,
as amended, (the "Act") and under the applicable securities laws of
the state or jurisdiction where the Shareholders reside.
E. It is the further intention of the parties hereto that: (i) the
Shareholders shall acquire 1,815,000 shares of Spectrum from Halter
(the Halter Shares) in consideration for the payment described
below (the Stock Purchase); and (ii) the Stock Purchase shall
qualify as a transaction in securities exempt from registration or
qualification under the Act and under the applicable securities laws
of the State or jurisdiction where the Shareholders reside.
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NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE OF SHARES
1.1 Exchange of Shares. Spectrum and the Shareholders hereby agree that
the Shareholders shall, on the Closing Date (as hereinafter defined), exchange
all of their issued and outstanding shares of the capital stock of the Company
(the "Shares") for 5,025,000 shares of Spectrum Common Stock, $.0001 par value
(the "Spectrum Shares") set forth in Exhibit A hereto. The number of shares of
capital stock owned by the Shareholders and the number of Spectrum Shares which
the Shareholders will be entitled to receive in the Exchange is set forth in
Exhibit A hereto.
1.2 Stock Purchase. Halter and the Shareholders hereby agree that the
Shareholders shall on the Closing Date purchase from Halter 1,815,000 shares of
Spectrum Common Stock in consideration for $350,000. The number of Halter Shares
which each of the Shareholders will be entitled to receive in the Stock Purchase
is set forth in Exhibit A hereto.
1.3 Delivery of Shares. On the Closing Date, the Shareholders will
deliver to Spectrum the certificates representing the Shares, duly endorsed (or
with executed stock powers) so as to make Spectrum the sole owner thereof.
Simultaneously, Spectrum will deliver certificates representing the Spectrum
Shares and Halter will deliver certificates representing the Halter Shares to
the Shareholders.
1.4 Tax-Free Reorganization. The Shareholders acknowledge that, in the
event that capital stock of the Company representing at least 80% in interest of
the Company is not exchanged for shares of Spectrum voting capital stock
pursuant hereto, the Exchange will not qualify as a tax-free reorganization
under Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
1.5 Investment Intent. The Spectrum Shares and the Halter Shares have
not been registered under the Securities Act of 1933, as Amended, and may not be
resold unless the Spectrum Shares and the Halter Shares are registered under the
Act or an exemption from such registration is available. The Shareholders
represent and warrant that they are acquiring the Spectrum Shares and the Halter
Shares for their own account, for investment, and not with a view to the sale or
distribution of such Shares. Each certificate representing the Spectrum Shares
and the Halter Shares will have a legend thereon incorporating language as
follows:
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"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"). The shares
have been acquired for investment and may not be sold or transferred
in the absence of an effective Registration Statement for the shares
under the Act unless in the opinion of counsel satisfactory to the
Company, registration is not required under the Act."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDERS
The Company and the Shareholders hereby represent and warrant as
follows:
2.1 Organization and Good Standing; Ownership of Shares. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Florida, and is entitled to own or lease its properties and
to carry on its business as and in the places where such properties are now
owned, leased or operated and such business is now conducted. The Company is
duly licensed or qualified and in good standing as a foreign corporation where
the character of the properties owned by it or the nature of the business
transacted by it make such licenses or qualifications necessary. The Company
does not have any subsidiaries. There are no outstanding subscriptions, rights,
options, warrants or other agreements obligating either the Company or the
Shareholders to issue, sell or transfer any stock or other securities of the
Company.
2.2 Ownership of Shares. The Shareholders are the owners of record and
beneficially of all of the shares of capital stock of the Company, all of which
Shares are free and clear of all rights, claims, liens and encumbrances, and
have not been sold, pledged, assigned or otherwise transferred except pursuant
to this Agreement.
2.3 Financial Statements, Books and Records. There has been previously
delivered to Spectrum the unaudited balance sheet of the Company as at March 31,
1999 (the "Balance Sheet"), and the related unaudited statement of operations
for the period then ended (the "Financial Statements"). The Financial Statements
are true and accurate and fairly represent the financial position of the Company
as at such dates and the results of its operations for the periods then ended,
and have been prepared in accordance with generally accepted accounting
principles consistently applied.
2.4 No Material Adverse Changes. Since the date of the Balance Sheet
there has not been:
(i) any material adverse change in the assets, operations, condition
(financial or otherwise) or prospective business of the Company;
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(ii) any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of the
Company, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of the Company's
capital stock;
(iv) any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by the Company of any properties or assets;
or
(v) adoption of any pension, profit sharing, retirement, stock bonus,
stock option or similar plan or arrangement.
2.5 Taxes. The Company has prepared and filed all appropriate federal,
state and local tax returns for all periods prior to and through the date hereof
for which any such returns have been required to be filed by it and has paid all
taxes shown to be due by said returns or on any assessments received by it or
has made adequate provision for the payment thereof.
2.6 Compliance with Laws. The Company has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to it or its business
which, if not complied with, would materially and adversely affect the business
of the Company.
2.7 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or By-Laws
of the Company;
(ii) violate, conflict with or result in the breach of any of the terms
of, result in a material modification of, otherwise give any other contracting
party the right to terminate, or constitute (or with notice or lapse of time or
both constitute) a default under, any contract or other agreement to which the
Company is a party or by or to which it or any of its assets or properties may
be bound or subject;
(iii) violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body against, or binding upon,
the Company, or upon the properties or business of the Company; or
(iv) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein which could have a materially
adverse effect on the business or operations of the Company.
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2.8 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Company. There is no action, suit
or claim or legal, administrative or arbitral proceeding or (whether or not the
defense thereof or liabilities in respect thereof are covered by insurance)
pending or threatened against or involving the Company or any of its properties
or assets. Except as set forth on Schedule 2.8, there is no fact, event or
circumstances that may give rise to any suit, action, claim, investigation or
proceeding.
2.9 Brokers or Finders. No broker's or finder's fee will be payable by
the Company in connection with the transactions contemplated by this Agreement,
nor will any such fee be incurred as a result of any actions by the Company or
the Shareholders.
2.10 Real Estate. Except as set forth on Schedule 2.10, the Company
neither owns real property nor is a party to any leasehold agreement.
2.11 Tangible Assets. The Company has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, owned or leased by the Company, any related capitalized items or
other tangible property material to the business of the Company (the "Tangible
Assets"). The Company holds all rights, title and interest in all the Tangible
Assets owned by it on the Balance Sheet or acquired by it after the date of the
Balance Sheet, free and clear of all liens, pledges, mortgages, security
interests, conditional sales contracts or any other encumbrances except as set
forth on Schedule 2.11. All of the Tangible Assets are in good operating
condition and repair and are usable in the ordinary course of business of the
Company and conform to all applicable laws, ordinances and governmental orders,
rules and regulations relating to their construction and operation.
2.12 Liabilities. The Company does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Balance Sheet. As of the Closing Date, the Company will not have any
Liabilities, other than Liabilities fully and adequately reflected on the
Balance Sheet, except for Liabilities incurred in the ordinary course of
business.
2.13 Operations of the Company. Except as set forth on Schedule 2.13,
from the date of the Balance Sheet and through the Closing Date hereof the
Company has not and will not have:
(i) incurred any indebtedness for borrowed money;
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(ii) declared or paid any dividend or declared or made any distribution
of any kind to any shareholder, or made any direct or indirect redemption,
retirement, purchase or other acquisition of any shares in its capital stock;
(iii) made any loan or advance to any shareholder, officer, director,
employee, consultant, agent or other representative or made any other loan or
advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or assumed any
indebtedness or liability (whether or not currently due and payable);
(v) disposed of any assets of the Company except in the ordinary course
of business; or
(vi) materially increased the annual rate of compensation of any
executive employee of the Company;
(vii) increased, terminated, amended or otherwise modified any plan for
the benefit of employees of the Company;
(viii) issued any equity securities or rights to acquire such equity
securities; or
(ix) except in the ordinary course of business, entered into or
modified any contract, agreement or transaction.
2.14 Capitalization. The authorized capital stock of the Company
consists of 1,000 shares of common stock of which 1,000 shares are presently
issued and outstanding. Neither the Company nor the Shareholders has granted,
issued or agreed to grant, issue or make available any warrants, options,
subscription rights or any other commitments of any character relating to the
issued or unissued shares of capital stock of the Company.
2.15 Full Disclosure. No representation or warranty by the Company or
the Shareholders in this Agreement or in any document or schedule to be
delivered by them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished to Spectrum pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement,
contains or will contain any untrue statement of a material fact or omits or
will omit to state any fact necessary to make any statement herein or therein
not materially misleading or necessary to a complete and correct presentation of
all material aspects of the businesses of the Company.
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2.16 Representations and Warranties on Closing Date. The
representations and warranties contained in this Section 2 shall be true and
complete on the Closing Date with the same force and effect as though such
representations and warranties had been made on and as of the Closing Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SPECTRUM
Spectrum and Halter hereby represent and warrant to the Company and the
Shareholders as follows:
3.1 Organization and Good Standing. Spectrum is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased, or
operated and such business is now conducted. The authorized capital stock of
Spectrum consists of 50,000,000 shares of Common Stock, of which approximately
2,612,000 shares are presently issued and outstanding giving effect to the
Companys recent reverse stock split and amendments to its Articles of
Incorporation. Spectrum is duly licensed or qualified and in good standing as a
foreign corporation where the character of the properties owned by Spectrum or
the nature of the business transacted by it make such license or qualification
necessary. Spectrum does not have any subsidiaries.
3.2 The Spectrum Shares. The Spectrum Shares to be issued to the
Shareholders have been or will have been duly authorized by all necessary
corporate and shareholder actions and, when so issued in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-assessable.
3.3 Financial Statements; Books and Records. There has been previously
delivered to the Company, the audited balance sheet of Spectrum as at March 31,
1999 (the "Balance Sheet") and the audited balance sheet as at March 31, 1998
and the related audited statements of operations for the periods then ended (the
"Financial Statements"). The Financial Statements are true and accurate and
fairly represent the financial position of the Company as at such dates and the
results of its operations for the periods then ended, and have been prepared in
accordance with generally accepted accounting principles consistently applied.
3.4 No Material Adverse Changes. Since the date of the Spectrum Balance
Sheet and except as otherwise disclosed in Spectrums reports or filings made
under the Securities Exchange Act of 1934, there has not been:
(i) any material adverse change in the assets, operations, condition
(financial or otherwise) or prospective business of Spectrum;
8
(ii) any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of
Spectrum, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of Spectrum's capital
stock;
(iv) any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by Spectrum of any properties or assets; or
(v) adoption of any pension, profit sharing, retirement, stock bonus,
stock option or similar plan or arrangement.
3.5 Compliance with Laws. Spectrum has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to their businesses,
including Federal and State securities laws, which, if not complied with, would
materially and adversely affect the business of Spectrum or the trading market
for the shares of Spectrum's Common Stock.
3.6 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or By-Laws
of Spectrum;
(ii) violate, conflict with or result in the breach of any of the terms
of, result in a material modification of, otherwise give any other contracting
party the right to terminate, or constitute (or with notice or lapse of time or
both constitute) a default under, any contract or other agreement to which
Spectrum is a party or by or to which it or any of its assets or properties may
be bound or subject;
(iii) violate any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body against, or binding upon,
Spectrum or Halter or upon the properties or business of Spectrum; or
(iv) violate any statute, law or regulation of any jurisdiction
applicable to the transactions contemplated herein which could have a material
adverse effect on the business or operations of Spectrum..
3.7 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving Spectrum. There is no action, suit or
claim or legal, administrative or arbitral proceeding or (whether or not the
defense thereof or liabilities in
9
respect thereof are covered by insurance) pending or threatened against or
involving Spectrum or any of its properties or assets. Except as set forth on
Schedule 3.7, there is no fact, event or circumstances that may give rise to any
suit, action, claim, investigation or proceeding.
3.8 Brokers or Finders. No broker's or finder's fee will be payable by
Spectrum or Halter in connection with the transactions contemplated by this
Agreement, nor will any such fee be incurred as a result of any actions by
Spectrum or Halter.
3.9 Liabilities. Spectrum does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Balance Sheet. As of the Closing Date, Spectrum will not have any Liabilities,
other than Liabilities fully and adequately reflected on the Balance Sheet,
except for Liabilities incurred in the ordinary course of business.
3.10 Operations of Spectrum. Except as set forth on Schedule 3.10 or in
Spectrums reports or filings made under the Securities Exchange Act of 1934,
since the date of the Spectrum Balance Sheet and through the Closing Date
hereof, Spectrum has not and will not have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of Spectrum except in the ordinary
course of business; or
(vi) materially increased the annual level of compensation of any
executive employee of Spectrum;
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(vii) increased, terminated amended or otherwise modified any plan
for the benefit of employees of Spectrum;
(viii) issued any equity securities or rights to acquire such
equity securities; or
(ix) except in the ordinary course of business, entered into or
modified any contract, agreement or transaction.
3.11 Authority to Execute and Perform Agreements. Spectrum and
Halter each has the full legal right and power and all authority and approval
required to enter into, execute and deliver this Agreement and to perform fully
their obligations hereunder. This Agreement has been duly executed and delivered
and is the valid and binding obligation of Spectrum and Halter enforceable in
accordance with its terms, except as may be limited by bankruptcy, moratorium,
insolvency or other similar laws generally affecting the enforcement of
creditors' rights. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and the performance by
Spectrum and Halter of this Agreement, in accordance with its respective terms
and conditions will not:
(i) require the approval or consent of any governmental or
regulatory body, the Shareholders of Spectrum or Halter, or the approval or
consent of any other person;
(ii) conflict with or result in any breach or violation of any of
the terms and conditions of, or constitute (or with any notice or lapse of time
or both would constitute) a default under, any order, judgment or decree
applicable to Spectrum or Halter, or any instrument, contract or other agreement
to which Spectrum or Halter is a party or by or to which Spectrum or Halter is
bound or subject; or
(iii) result in the creation of any lien or other encumbrance on
the assets or properties of Spectrum or Halter.
3.12 Delivery of Periodic Reports; Compliance with 1934 Act.
Spectrum has provided the Company and Shareholders with all of its Periodic
Reports filed with the Securities and Exchange Commission since January 1, 1995.
Spectrum has filed all required Periodic Reports and is in compliance with its
reporting obligations under the Securities Exchange Act of 1934. All reports
filed pursuant to such Act are complete and correct in all material respects.
All material contracts relative to Spectrum are included in the Periodic
Reports.
3.13 Ownership Of Halter Shares. Halter is the owner of record and
beneficially of all of the Halter Shares. All of the Halter Shares are free and
clear of all rights, claims,
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liens and encumbrances, and have not been sold, pledged, assigned or otherwise
transferred except pursuant to this Agreement.
3.14 Full Disclosure. No representation or warranty by Spectrum or
Halter in this Agreement or in any document or schedule to be delivered by it
pursuant hereto, and no written statement, certificate or instrument furnished
or to be furnished to the Company or the Shareholders pursuant hereto or in
connection with the execution or performance of this Agreement contains or will
contain any untrue statement of a material fact or omits or will omit to state
any fact necessary to make any statement herein or therein not materially
misleading or necessary to a complete and correct presentation of all material
aspects of the business of Spectrum.
3.15 Representations and Warranties on Closing Date. The
representations and warranties contained in this Section 3 shall be true and
complete on the Closing Date with the same force and effect as through such
representations and warranties had been made on and as of the Closing Date.
SECTION 4. COVENANTS OF COMPANY AND SHAREHOLDERS
The Company and the Shareholders covenant to Spectrum and Halter as
follows:
4.1 Conduct of Business. From the date hereof through the Closing Date,
the Shareholders and The Company shall cause the Company to conduct its business
in the ordinary course and, without the prior written consent of Spectrum, shall
ensure that the Company does not undertake any of the actions specified in
Section 2.13 hereof.
4.2 Preservation of Business. From the date hereof through the Closing
Date, the Shareholders and the Company shall cause the Company to use its best
efforts to preserve its business organization intact, keep available the
services of its present employees, consultants and agents, maintain its present
suppliers and customers and preserve its goodwill.
4.3 Litigation. The Company shall promptly notify Spectrum of any
lawsuits, claims, proceedings or investigations which after the date hereof are
threatened or commenced against the Company or against any officer, director,
employee, consultant, agent, shareholder or other representative with respect to
the affairs of the Company.
4.4 Continued Effectiveness of Representations and Warranties. From the
date hereof through the Closing Date, the Shareholders and the Company shall
cause the Company to conduct its business in such a manner so that the
representations and warranties contained in Section 2 shall continue to be true
and correct on and as of the Closing Date and as if made on and as of the
Closing Date, and shall:
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(i) promptly give notice to the Company or any event, condition or
circumstance occurring from the date hereof through the Closing Date which would
render any of the representations or warranties materially untrue, incomplete,
insufficient or constitute a violation or breach of this Agreement; and
(ii) supplement the information contained herein in order that the
information contained herein is kept current, complete and accurate in all
material respects.
SECTION 5. COVENANTS OF SPECTRUM AND HALTER
Spectrum and Halter covenant to the Company and the Shareholders
as follows:
5.1 Conduct of Business. From the date hereof through the Closing
Date, Spectrum shall conduct its business in the ordinary course and, without
the prior written consent of the Company, shall ensure that Spectrum does not
undertake any of the actions specified in Section 3.10 hereof.
5.2 Preservation of Business. From the date hereof through the
Closing Date, Spectrum shall preserve its business organization intact and use
its best efforts to preserve Spectrums goodwill.
5.3 Litigation. Spectrum and Halter shall promptly notify the
Company of any lawsuits, claims, proceedings or investigations which after the
date hereof are threatened or commenced against Spectrum or Halter or against
any officer, director, employee, consultant, agent, or stockholder with respect
to the affairs of Spectrum or Halter.
5.4 Continued Effectiveness of Representations and Warranties.
From the date hereof through the Closing Date, Spectrum shall conduct its
business in such a manner so that the representations and warranties contained
in Section 3 shall continue to be true and correct on and as of the Closing Date
and as if made on and as of the Closing Date, and shall:
(i) promptly give notice to the Company of any event, condition or
circumstance occurring from the date hereof through the Closing Date which would
render any of the representations or warranties materially untrue, incomplete,
insufficient or constitute a violation or breach of this Agreement; and
(ii) supplement the information contained herein in order that the
information contained herein is kept current, complete and accurate in all
material respects.
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SECTION 6. COVENANTS
6.1 Corporate Examinations and Investigations. Prior to the Closing
Date, the parties acknowledge that they have been entitled, through their
employees and representatives, to make such investigation of the assets,
properties, business and operations, books, records and financial condition of
the other as they each may reasonably require. No investigation by a party
hereto shall, however, diminish or waive in any way any of the representations,
warranties, covenants or agreements of the other party under this Agreement.
6.2 Expenses. Each party hereto agrees to pay its own costs and
expenses incurred in negotiating this Agreement and consummating the
transactions described herein.
6.3 Further Assurances. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or obtain the
fulfillment of the conditions to the Closing, including, without limitation, the
execution and delivery of any documents or other papers, the execution and
delivery of which are necessary or appropriate to the Closing.
6.4 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, each of the parties hereto agree to keep
confidential any information disclosed to each other in connection therewith for
a period of one (1) year from the date hereof; provided, however, such
obligation shall not apply to information which:
(i) at the time of disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge (except
due to the action of the receiving party); or
(iii) the receiving party had within its possession at the time of
disclosure.
6.5 Limitation of Sales by Halter. As of the date of the Closing,
Halter will own 60,000 shares of Common Stock of Spectrum which are unrestricted
within the meaning of the Act. In addition to any restrictions that may apply to
the disposition of these shares pursuant to Rule 144 and any other applicable
provisions of the Act, Halter agrees that with respect to such shares, it will
not sell more than 12,000 of such shares on a cumulative basis in each 30-day
period following the Closing Date.
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SECTION 7. CONDITIONS PRECEDENT TO THE OBLIGATION OF SPECTRUM AND
HALTER TO CLOSE
The obligation of Spectrum and Halter to enter into and complete the
Closing is subject, at the option of Spectrum and Halter, to the fulfillment on
or prior to the Closing Date of the following conditions, any one or more of
which may be waived by Spectrum and Halter in writing.
7.1 Representations and Covenants. The representations and warranties
of the Company and the Shareholders contained in this Agreement shall be true in
all material respects on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date. The Company and the
Shareholders shall have performed and complied in all material respects with all
covenants and agreements required by this Agreement to be performed or complied
with by the Company and the Shareholders on or prior to the Closing Date. The
Company and the Shareholders shall have delivered to Spectrum and Halter, if
requested, a certificate, dated the Closing Date, to the foregoing effect.
7.2 Governmental Permits and Approvals; Corporate Resolutions. Any and
all permits and approvals from any governmental or regulatory body required for
the lawful consummation of the Closing shall have been obtained. The Board of
Directors or the Shareholders of the Company shall have approved the
transactions contemplated by this Agreement and the Company shall have delivered
to Spectrum, if requested by Spectrum or Halter resolutions by its Board of
Directors, certified by the Secretary of the Company authorizing the
transactions contemplated by this Agreement.
7.3 Third Party Consents. All consents, permits and approvals from
parties to any contracts, loan agreements or other agreements with the Company
which may be required in connection with the performance by the Company of its
obligations under such contracts or other agreements after the Closing shall
have been obtained.
7.4 Satisfactory Business Review. Spectrum and Halter shall have
satisfied itself, after receipt and consideration of the Schedules and after
Spectrum and its representatives have completed the review of the business of
the Company contemplated by this Agreement, that none of the information
revealed thereby or in the Financial Statements has resulted in, or in the
reasonable opinion of Spectrum may result in, a material adverse change in the
assets, properties, business, operations or condition (financial or otherwise)
of the Company.
7.5 Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by any governmental or regulatory body to restrain, modify or prevent
the carrying out of the transactions contemplated hereby or to seek damages or a
discovery order in connection with such
15
transactions, or which has or may have, in the reasonable opinion of Spectrum, a
materially adverse effect on the assets, properties, business, operations or
condition (financial or otherwise) of the Company.
7.6 Certificate of Good Standing. Spectrum shall have received a
certificate of good standing dated at or about the Closing Date to the effect
that the Company is in good standing under the laws of its jurisdictions of
incorporation.
7.7 Stock Certificates: At the Closing, the Shareholders shall have
delivered the certificates representing the Shares, duly endorsed (or with
executed stock powers) so as to make Spectrum the sole owner thereof.
7.8 Other Documents. The Company and the Shareholders shall have
delivered such other documents, instruments and certificates, if any, as are
required to be delivered pursuant to the provisions of this Agreement or which
may be reasonably requested in furtherance of the provisions of this Agreement.
SECTION 8. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY
AND SHAREHOLDERS TO CLOSE
The obligation of the Company and the Shareholders to enter into and
complete the Closing is subject, at the option of the Company and the
Shareholders, to the fulfillment on or prior to the Closing Date of the
following conditions, any one or more of which may be waived in writing by the
Company.
8.1 Representations and Covenants. The representations and warranties
of Spectrum and Halter contained in this Agreement shall be true in all material
respects on the Closing Date with the same force and effect as though made on
and as of the Closing Date. Spectrum and Halter shall have performed and
complied with all covenants and agreements required by the Agreement to be
performed or complied with by Spectrum and Halter on or prior to the Closing
Date. Spectrum and Halter shall have delivered to the Company and the
Shareholders, if requested, a certificate, dated the Closing Date and signed by
an executive officer of Spectrum and Halter, to the foregoing effect.
8.2 Governmental Permits and Approvals; Corporate Resolutions. Any and
all permits and approvals from any governmental or regulatory body required for
the lawful consummation of the Closing shall have been obtained. The Board of
Directors of Spectrum and Halter shall have approved the transactions
contemplated by this Agreement, and Spectrum and Halter shall have delivered to
the Company and the Shareholders, if requested, resolutions by their Board of
Directors certified by the Secretary of Spectrum and Halter authorizing the
transactions contemplated by this Agreement.
16
8.3 Third Party Consents. All consents, permits and approvals from
parties to any contracts, loan agreements or other agreements with Spectrum and
Halter which may be required in connection with the performance by Spectrum and
Halter of their obligations under such contracts or other agreements after the
Closing shall have been obtained.
8.4 Satisfactory Business Review. The Company and the Shareholders
shall have satisfied themselves, after review of the information provided hereby
or in connection herewith, or following any discussions with management or
representatives of Spectrum that none of the information revealed thereby has
resulted in or in the reasonable opinion of the Company may result in a material
adverse change in the assets, properties, business, operations or condition
(financial or otherwise) of Spectrum.
8.5 Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by any governmental or regulatory body to restrain, modify or prevent
the carrying out of the transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which has or may in the
reasonable opinion of the Company, have a materially adverse effect on the
assets, properties, business, operations or condition (financial or otherwise)
of Spectrum.
8.6 Stock Certificates. At the Closing, the Shareholders shall receive
certificates representing the securities to be received pursuant hereto.
8.7 Other Documents. Spectrum and Halter shall have delivered such
other instruments, documents and certificates, if any, as are required to be
delivered pursuant to the provisions of this Agreement or which may be
reasonably requested in furtherance of the provisions of this Agreement.
SECTION 9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF SPECTRUM
AND HALTER
Notwithstanding any right of the Company and the Shareholders fully to
investigate the affairs of Spectrum and Halter, the former shall have the right
to rely fully upon the representations, warranties, covenants and agreements of
Spectrum and Halter contained in this Agreement or in any document delivered by
Spectrum or Halter or any of its representatives, in connection with the
transactions contemplated by this Agreement. All such representations,
warranties, covenants and agreements shall survive the execution and delivery
hereof and the Closing Date hereunder for twelve (12) months following the
Closing.
17
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE
COMPANY AND THE SHAREHOLDERS
Notwithstanding any right of Spectrum and Halter fully to investigate
the affairs of the Company, Spectrum and Halter have the right to rely fully
upon the representations, warranties, covenants and agreements of the Company
and the Shareholders contained in this Agreement or in any document delivered to
Spectrum or Halter by the latter or any of their representatives in connection
with the transactions contemplated by this Agreement. All such representations,
warranties, covenants and agreements shall survive the execution and delivery
hereof and the Closing Date hereunder for twelve (12) months following the
Closing.
SECTION 11. INDEMNIFICATION
11.1 Obligation of Spectrum and Halter to Indemnify. Subject to the
limitations on the survival of representations and warranties contained in
Section 9, Spectrum and Halter hereby agree to indemnify, defend and hold
harmless the Company and the Shareholders from and against any losses,
liabilities, damages, deficiencies, costs or expenses (including interest,
penalties and reasonable attorneys' fees and disbursements) (a "Loss") based
upon, arising out of or otherwise due to any inaccuracy in or any breach of any
representation, warranty, covenant or agreement of Spectrum and Halter contained
in this Agreement or in any document or other writing delivered pursuant to this
Agreement.
11.2 Obligation of the Company and the Shareholders to Indemnify.
Subject to the limitations on the survival of representations and warranties
contained in Section 10, the Company and the Shareholders agree to indemnify,
defend and hold harmless Spectrum and Halter from and against any Loss, based
upon, arising out of or otherwise due to any inaccuracy in or any breach of any
representation, warranty, covenant or agreement made by any of them and
contained in this Agreement or in any document or other writing delivered
pursuant to this Agreement.
SECTION 12. THE CLOSING
The Closing shall take place not later than July 9, 1999. At the
Closing, the parties shall provide each other with such documents as may be
necessary or appropriate in order to consummate the transactions contemplated
hereby including evidence of due authorization of the Agreement and the
transactions contemplated hereby.
SECTION 13. MISCELLANEOUS
13.1 Waivers. The waiver of a breach of this Agreement or the failure
of any party hereto to exercise any right under this Agreement shall in no event
constitute waiver as to
18
any future breach whether similar or dissimilar in nature or as to the exercise
of any further right under this Agreement.
13.2 Amendment. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
13.3 Assignment. This Agreement is not assignable except by operation
of law.
13.4 Notices. Until otherwise specified in writing, the mailing
addresses of both parties of this Agreement shall be as follows:
The Company: WORLDWIDEWEB INSTITUTE, INC.
0000 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Shareholders: c/o Smiley Sansoni
0000 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Spectrum SPECTRUM PHARMACEUTICAL CORP.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Halter HALTER CAPITAL CORPORATION
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registeed mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
13.5 Governing Law. This Agreement shall be construed, and the legal
relations be the parties determined, in accordance with the laws of the State of
Florida, thereby precluding any choice of law rules which may direct the
applicable of the laws of any other jurisdiction.
13.6 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance thereof by the other party.
19
13.7 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the purchase and issuance of the
Shares and the Spectrum Shares and the Halter Shares and related transactions,
and supersede all prior agreements, written or oral, with respect thereto.
13.8 Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
13.9 Severability of Provisions. The invalidity or unenforceability of
any term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
13.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
SPECTRUM PHARMACEUTICAL CORP.
By: ______________________________
Name: ____________________________
Its: _____________________________
HALTER CAPITAL CORPORATION
By: _____________________________
Name: ___________________________
Its: ____________________________
WORLDWIDEWEB INSTITUTE, INC.
By: ____________________________
Name: __________________________
Its: President
20
SHAREHOLDERS:
______________________________
SMILEY X. XXXXXXX
______________________________
XXXXXXX XXXXXX
______________________________
XXXXX XXXXX XXXXXX
______________________________
XXXX XXXXXXXX
______________________________
XXXX XxXXXX
CORPORATE BUILDERS, INC.
By: ____________________________
Name: __________________________
Its: ___________________________
PROSPERITY POWER, INC.
By: ____________________________
Name: __________________________
Its: ___________________________
21
Exhibit A
EXCHANGE WITH WORLDWIDEWEB INSTITUTE, INC.
Shares of Spectrum Halter
Name of the Company to Shares to be Shares to be
Shareholders be Exchanged Received Received
------------- -------------- ------------ ------------
Smiley X. Xxxxxxx 650 3,266,250 1,179,750
Xxxxxxx Xxxxxx 25 125,625 45,375
Xxxxx Xxxxx Xxxxxx 150 753,750 272,250
Xxxx Xxxxxxxx 75 376,875 136,125
Xxxx XxXxxx 25 125,625 45,375
Corporate Builders, Inc. 50 251,250 90,750
Prosperity Power, Inc. 25 125,625 45,375
