ACQUISITION AGREMENT
AGREEMENT dated __ October 1998 ("the Agreement"), by, between
and among XXXXXXX SUPPLY INC, a company incorporated under the
laws of the state of Delaware (herein referred to as XXXXXXX),
the persons listed on Exhibit A attached hereto and made a
part hereof, being all of the shareholders and executive
officers of XXXXXXX (hereinafter referred to as "MANAGEMENT");
ATRIUM GROUP OF COMPANIES LTD, a company incorporated under
the laws of England and Wales (hereinafter referred to as
"AGC"); and the persons listed on Exhibit "A" attached hereto
and made a part hereof, (hereinafter referred to as the
"SELLERS").
WHEREAS, the SELLERS own a total of 100 shares of common
stock, $.01 par value, of AGC, said shares being 100% of the
issued and outstanding common stock of AGC.
WHEREAS, the SELLERS desire to sell and XXXXXXX desires to
purchase one hundred (100%) percent of such shares.
NOW, THEREFORE, in consideration of the mutual convenants,
agreements, representations and warranties herein contained,
the parties hereby agree as follows:
1. Purchase and Sale - The SELLERS hereby agree to sell,
transfer, assign and convey to XXXXXXX and XXXXXXX hereby
agrees to purchase and acquire from the SELLERS, a total of
100 shares of common stock of AGC, which equates one hundred
percent (100%) percent of all of AGC's currently issued and
outstanding common stock (the AGC Common Shares"), in a tax-
free stock-for-stock acquisition.
2. Purchase Price - The aggregate purchase price to be
paid
by XXXXXXX for the AGC Common Shares shall be 10,000,000
post-reverse split shares of XXXXXXX $0.01 par value voting
common stock (the "XXXXXXX Common Shares"). The XXXXXXX
Common Shares will be issued to the individual SELLERS in
accordance with Exhibit "A-1" attached hereto.
3. Warranties Representations and Covenants of AGC and AGC
PRINCIPALS - In order to induce XXXXXXX to enter into this
Agreement and to complete the transaction contemplated
hereby, AGC and its principal executive officers
(hereinafter referred to as the "AGC PRINCIPALS", jointly
and severally warrant and represent to XXXXXXX that:
(a) Organization and Standing AGC is a corporation duly
organized, validly existing and in a good standing under
the laws of the United Kingdom, is qualified to do
business as a foreign corporation in every other state or
jurisdiction in which it operates to the extent required
by the laws of such states and jurisdictions, and has
full power and authority to carry on its business as now
conducted and to own and operate its assets, properties
and business. Attached hereto as Exhibit "B" are true
and correct copies of AGC's Certificate of Incorporation,
amendments thereto and all current \by-laws of AGC. No
changes thereto will be made in any of the Exhibit "B"
documents before the closing. AGC has no subsidiaries
except as listed or any investments or ownership
interests in any corporation, partnership, joint venture
or other business enterprise which is material to its
business.
(b) Capitalization As of the Closing Date of AGC's entire
authorized equity capital consists of 100 shares of GBP1 par
value, of which 100 shares of Common Stock will be
outstanding as of the Closing. As of the Closing Date,
there will be no other voting or equity securities
authorized or issued, nor any authorized or issued
securities convertible into voting stock, and no outstanding
subscriptions, warrants, calls, options, rights, commitments
or agreements by which AGC or the SELLERS are bound, calling
for the issuance of any additional shares of common stock or
any other voting or equity security, except as set forth in
Exhibit "AGC-S", attached hereto. The 100 issued and
outstanding AGC Common Shares to be transferred by SELLERS
constitutes one hundred (100%) percent of the currently
issued and outstanding shares of Common Stock of AGC, which
includes inter-claim, that same percentage of AGC's voting
power, right to receive dividends, when, as and if declared
and paid, and the right to receive the proceeds of
liquidation attributable to common stock, if any.
(c) Ownership of AGC Shares Each SELLER warrants and
represents, severally, that as of the date hereof, such
SELLER is the sole owner of the AGC Common Shares listed by
his or her name on Exhibit "A-1", free and clear of all
liens, encumbrances, and restrictions whatsoever, except
that the AGC Common Shares so listed have not been
registered under the Securities Act of 1933, as amended (the
"33 Act"), or any applicable State Securities laws. By
SELLERS' transfer of the AGC Common Shares to XXXXXXX
pursuant to this Agreement. XXXXXXX will thereby acquire
100% of the outstanding capital stock of AGC, free and clear
of all liens, encumbrances and restrictions of any nature
whatsoever, except by reason of the fact that the AGC Common
Shares will not have been registered under the '33 Act, or
any applicable State securities laws.
(d) Taxes AGC has filed all federal, state and local income
or other tax returns and reports 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, such that a failure to file, pay or accrue will not
have a material adverse effect on AGC. AGC's income tax
returns have never been audited by any authority empowered
to do so.
(e) Pending Actions There are no known material legal
actions, lawsuits, proceedings or investigations, either
administrative or judicial, pending or threatened, against
or affecting AGC, or against the AGC PRINCIPALS that arrive
out of their operation of AGC, except as described in
Exhibit "C" attached hereto. AGC is not knowingly in
material violation of any law, material ordinance or
regulation of any kind whatever, including, but not limited
to laws, rules and regulations governing the sale of its
services, the 33 Act, the Securities Exchange Act of 1934,
as amended (the "34 Act"), the Rules and Regulations of the
U.S. Securities and Exchange Commission ("SEC"), or the
Securities Laws and Regulations of any state or nation.
(f) Government and Regulation AGC holds the licenses and
registrations set forth on Exhibit "D" hereto from the
jurisdictions set forth therein, which licenses and
registrations are all of the licenses and registrations
necessary to permit AGC to conduct its current business.
All of such licenses and registrations are in full force and
effect, and there are no proceedings, hearings or other
actions pending that may affect the validity or continuation
of any of them. No approval of any other trade or
professional association or agency of government other than
as set forth on Exhibit "D" is required for any of the
transactions effected by this Agreement, and the completion
of the transactions contemplated by this Agreement will not,
in and of themselves, affect or jeopardize the validity or
continuation of any of them.
(g) Ownership of Assets Except as set forth in Exhibit "E"
attached hereto, AGC has good, marketable title, without any
liens or encumbrances of any nature whatever, to all of the
following, if any; assets, properties and rights of every
type and description, including, without limitation, all
cash on hand and in banks, certificates of deposit, stocks,
bonds, and other securities, good will, customer lists, its
corporate name and all variants thereof, trademarks and
trade names, copyrights and interests thereunder, licenses
and registrations, pending licenses and permits and
applications therefor, inventions, processes, know-how,
trade secrets, real estate and interests therein and
improvements thereto, machinery, equipment, vehicles, notes
and accounts receivable, fixtures, rights under agreements
and leases, franchises, all rights and claims under
insurance policies and other contracts of whatever nature,
rights in funds of whatever nature, books and records and
all other property and rights of every kind and nature owned
or held by AGC as of this date, and will continue to hold
such title on and after the completion of the transactions
contemplated by this Agreement; nor, except in the ordinary
course of its business, has AGC disposed of any such asset
since the date of the most recent balance sheet described in
Section 3(0) of this Agreement.
(h) No Interest in Suppliers, Customers, Landlords or
Competitors Neither the AGC PRINCIPALS nor any member of
their families have any material interest of any nature
whatever in any supplier, customer, landlord or competitor
of AGC.
(i) No Debt Owed by AGC to AGC PRINCIPALS Except as set
forth
in Exhibit "F" attached hereto, AGC does not owe any money,
securities, or property to either the AGC PRINCIPALS or any
member of their families or to any company controlled by
such a person, directly or indirectly. To the extent that
AF+GC may have any undisclosed liability to pay any sum or
property to any such person or equity or any member of their
families such liability is hereby forever irrevocably
released and discharged.
(j) Complete Records All of AGC's books and records,
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.
(k) No Misleading Statements or Omissions Neither this
Agreement nor any financial statement, exhibit, schedule or
document attached hereto or presented to XXXXXXX in
connection herewith, contains any materially misleading
statement or omits any fact or statement necessary to make
the other statements or facts therein set forth not
materially misleading.
(l) Validity of this Agreement All corporate and other
proceedings required to be taken by the SELLERS and by AGC
in order to enter into and carry out this Agreement have
been duly and properly taken. This Agreement has been duly
executed by the SELLERS and by AGC, and constitutes the
valid and binding obligation of each of them, enforceable in
accordance with its terms except to the extent limited by
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws relating to or effecting generally
the enforcement of creditors rights. The execution and
delivery of this Agreement and the carrying out of its
purposes will not result in the breach of any of the terms
and conditions of, or constitute a default under or violate,
AGC's Certificate of Incorporation or By-Laws, or any
material agreement, lease, mortgage, bond, indenture,
license or other material document or undertaking, oral or
written, to which AGC or the SELLERS is a party or is bound
or may be affected, nor will such execution, delivery and
carrying out violate any law, rule or regulation or any
order, with injunction or decree, of any court, regulatory
agency or other governmental body; and the business now
conducted by AGC can continue to be so conducted after
completion of the transaction contemplated hereby, with AGC
as a wholly owned subsidiary of XXXXXXX.
(m) Concepts and Approvals: Compliance with Laws Neither
AGC
nor the SELLERS are required to make any filing with, or
obtain the consent or approval of, any person or entity as
a
condition to the consummation of the transactions
contemplated by this Agreement. The business of AGC has
been operated in material compliance with all laws, rules,
and regulations applicable to its business, including,
without limitation, those related to securities matters,
trade matters, environmental matters, public health and
safety, and labor and employment.
(n) Access to Books and Records XXXXXXX will have full and
free access to AGC's books during the course of this
transaction prior to Closing, during regular business hours,
on reasonable notice.
(o) AGC Financial Statements Before the Closing, AGC's
audited financial statements as of and for the period from
inception to September 30, 1998, will be provided to XXXXXXX
and will be annexed hereto as Exhibit "G"; the AGC financial
statements will accurately describe AGC's financial position
as of the dates thereof. The AGC financial statements will
have been prepared in accordance with generally accepted
accounting principles in the United States ("GAAP") (or as
permitted by regulation S-X, S-B, and/or the rules
promulgated under the 33 Act and the 34 Act) and for the
period from inception to September 30, 1998 audited by
independent certified public accountants with SEC
experience.
(p) AGC's Corporate Summary AGC's Business Plan, dated
August
1998 (attached hereto as Exhibit "L") accurately describes
AGC's business assets, proposed operations and management as
of the date thereof; since the date of the Corporate Plan,
there has been no material adverse change in the Business
Plan and no material adverse change in AGC; provided that no
warranties or representations are made as to any financial
projections.
4. Warranties, representations and Covenants of XXXXXXX AND
MANAGEMENT OF XXXXXXX ("MANAGEMENT") In order to induce the
SELLERS and AGC to enter into this Agreement and to complete
the transaction contemplated hereby, XXXXXXX AND MANAGEMENT
jointly and severally warrant, represent and covenant to AGC
and SELLERS that :
(a) Organization and Standing XXXXXXX is a corporation
duly organized, validly existing and in good standing
under the laws of the State of Delaware, will be
qualified to do business as a foreign corporation in
every other state and jurisdiction in which it operates
to the extent required by the laws of such states or
jurisdictions, and will have full power and authority
to carry on its business as now conducted and to own
and operate its assets, properties and business.
XXXXXXX has no subsidiaries or any other investments or
ownership interests in any corporation, partnership,
joint venture or other business enterprise.
(b) Capitalization XXXXXXX'x entire authorized equity
capital consists of 25,000,000 shares of voting common
stock, $0.01 par value. As of the Closing, after
giving effect to (I) the proposed one-for-7.5 reverse
split of XXXXXXX'x 4,325,000 currently outstanding
shares into 576,000 shares; and (II) the issuance of
10,000,000 post-reverse split shares to the SELLERS as
described in Section 2 herein; (III) the issuance of
100,000 post-reverse split shares to the Consultants
described in Section 12 hereof, XXXXXXX will have
authorized 25,000,000 shares of Common Stock, par value
$0.01; and will have issued and outstanding 10,676,000
shares of voting common stock, $0.01 par value and no
shares of preferred stock issued. Upon issuance, all
of the XXXXXXX Common Stock will be validly issued,
fully paid and non-assessable. The relative rights and
preferences of XXXXXXX'x equity securities are set
forth on the Certificate of Incorporation, as amended
and XXXXXXX'x By-laws (Exhibit "H" hereto). There are
no other voting or equity securities authorized or
issued, not any authorized or issued securities
convertible into voting stock, and no outstanding
subscriptions, warrants, calls, options, rights,
commitments or agreements by which XXXXXXX is bound,
calling for the issuance of any additional shares of
common stock or any other voting or equity security.
The By-laws of XXXXXXX provide that a simple majority
of the shares voting at a stock holders' meeting at
which a quorum is present may elect all of the
directors of XXXXXXX. Cumulative voting is not
provided for by the By-Laws or Certificate of
Incorporation of XXXXXXX. Accordingly, as of the
Closing the 10,000,000 shares being issued to and
acquired by the SELLERS will constitute 93.7% of the
10,676,000 shares of XXXXXXX which will then be issued
and outstanding (including all consulting fees) which
includes, inter alia, that same percentage of XXXXXXX'x
voting power (subject to the provisions regarding
cumulative rights), right to receive dividends, when,
as and if declared and paid, and the right to receive
the proceeds of liquidation attributable to common
stock, if any.
(c) Ownership of Shares By XXXXXXX'x issuance of the
XXXXXXX Common Shares to the SELLERS pursuant to this
Agreement, the SELLERS will thereby acquire good,
absolute marketable title thereto, free and clear of
all liens, encumbrances and restrictions of any nature
whatsoever, except by reason of the fact that such
XXXXXXX shares will not have been registered under the
33 Act, or any applicable state securities laws.
(d) Significant Agreements XXXXXXX is not and will not
at Closing be bound by any of the following:
(i) Employment, advisory or consulting contract
(except as described in Section 12 herein).
(ii) Plan providing for employee benefits of
any nature.
(iii) Lease with respect to any property or
equipment.
(iv) Contract of commitments for any current
expanditure.
(v) Contract or commitment pursuant to which it
has
assumed, guaranteed, endorsed or otherwise become
liable for any obligation of any other person,
firm or organization.
(vi) Contract, agreement, understanding,
commitment or arrangement either than in the
normal course of business, not set forth in the
Agreement or an Exhibit hereto.
(vii) Agreement with any person relating to
the
dividend, purchase or sale of securities, that has
not been settled by the delivery of payment of
securities when due, and which remains unsettled
upon the date of this Agreement.
(e)Taxes XXXXXXX has filed all federal, state and
local
income or other tax returns and reports that it is
required to file with all governmental agencies,
wherever situate, and has paid all taxes as shown
on such returns. All of such returns are true and
complete. XXXXXXX'x income tax returns have never
been audited by say authority empowered to do so.
(f)Absence of Liabilities As of the Closing
Date
XXXXXXX will have no liabilities of any kind or
nature, fixed or contingent, except for the costs,
including legal and accounting fees and other
expenses, in connection with this transaction, for
which XXXXXXX agrees to be responsible and to pay
in full at or before the Closing.
(g)No Pending Actions To the best of
management's
knowledge, there are no legal actions, lawsuits,
proceedings or investigations, either
administrative or judicial, pending or threatened
against or affecting XXXXXXX, or against any of
the XXXXXXX MANAGEMENT and arising out of their
operation of XXXXXXX. XXXXXXX has been in
compliance with, and has not received notice of
violation of any law, ordinance of any kind
whatever, including, but not limited to, the 33
Act, the Rules and Regulations of the SEC, or the
Securities Laws and Regulations of any sale.
XXXXXXX is not an investment company as defined
in, or otherwise subject to regulation under, the
Investment Company Act of 1940. XXXXXXX is not
required to file reports pursuant to either
Section 13 or Section 15 (d) of the 34 Act.
(h)Corporate Records All of XXXXXXX'x books and
records, 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 respects since its
date of incorporation; all of said books and
records will be made available for inspection by
AGC's authorized representatives prior to the
Closing as provided by Section 4(I) herein, and
will be delivered to XXXXXXX'x new management at
the Closing.
(i)No Misleading Statements or Omissions
Neither
this agreement nor any financial statement,
exhibit, schedule or document attached hereto or
presented to AGC in connection herewith contains
any materially misleading statement, or omits any
fact or statement necessary to make the other
statements or facts therein set forth not
materially misleading.
(j)Validity of this Agreement All corporate and
other proceedings required to be taken by XXXXXXX
in order to enter into and to carry out this
Agreement will have been duly and properly taken
at or before the Closing. This Agreement has been
duly executed by XXXXXXX, constitutes a valid and
binding obligation of XXXXXXX enforceable in
accordance with its terms. The execution and
delivery of this Agreement and the carrying out of
its purposes will not result in the breach of any
of the terms or conditions of, or constitute a
default under or violate, XXXXXXX'x Certificate of
Incorporation or By-Laws, or any agreement, lease,
mortgage, bond, indenture, license or other
document or undertaking, oral or written, to which
XXXXXXX is a party or is bound or may be affected
nor will such execution, delivery and carrying out
violate any law, rule or regulation or any order,
writ, injunction or decree of any court,
regulatory agency or other governmental body.
(k)Consents and Approvals, Compliance with Laws
Except for the notices to be filed as described in
Section 7(a)(v) herein, neither AGC nor MANAGEMENT
is required to make any filing with, or obtain the
consent or approval of, any person or entity as
a
condition to the consummation of the transactions
contemplated by this Agreement. The business of
XXXXXXX has been operated in compliance with all
laws, rules and regulations applicable to its
business, including, without limitation, those
related to securities matters, trade matters,
environmental matters, public health and safety,
and labor and employment.
(l)Access to Books and Records AGC and SELLERS
will have full and free access to AGC's books and
records during the course of this transaction
prior to and at the Closing on reasonable notice.
(m)XXXXXXX Financial Statements At or before
the
Closing, XXXXXXX and MANAGEMENT will provide AGC
with XXXXXXX'x audited financial statements for
the fiscal year ended September 30, 1998 which
will be audited in accordance with GAAP by
independent certified public accountants with SEC
experience, and which comply with applicable
Federal securities laws and regulations including
Regulation S-X. There will have been no material
change in the business, assets or condition
(financial or otherwise) of XXXXXXX since the date
of such financial statements to the Closing.
(n)XXXXXXX Financial Condition As of the
Closing,
XXXXXXX will have no assets or liabilities, except
as disclosed in financial statements.
(o)Directors and Shareholders Approval As of
the
Closing, XXXXXXX'x Board of Directors and
Shareholders, by meeting or consent shall have
properly authorized the matters described in
section 7(a)(iv)herein.
(p)The XXXXXXX Shares All of the XXXXXXX Common
Shares issued to SELLERS shall be validly issued,
fully-paid non-assessable shares of XXXXXXX Common
Stock, with full voting rights, dividend rights,
and right to receive the proceeds of liquidation
, if any, as set forth in XXXXXXX'x Certificate of
Incorporation.
(q)Trading of XXXXXXX Stock XXXXXXX will file 15-C2-
11 with NASD prior to closing.
5. Term: Indemnification All representations, warranties,
covenants and agreements made herein and in the exhibits
attached hereto shall survive the execution and delivery of
this Agreement and payment pursuant thereto. MANAGEMENT and
AGC MANAGEMENT ("management") of both parties to the
agreement hereby agree, jointly and severally, to indemnify,
defend, and hold harmless XXXXXXX, AGC, and the SELLERS from
and against any damage, loss, liability, or expense
(including without limitation, reasonable expenses of
investigation and reasonable attorney's fees) arising out of
any material breech of any representation, warranty,
covenant, or agreement made by AGC MANAGEMENT or management
in this Agreement.
1. Restricted Shares: Legend All of the XXXXXXX Common
Shares issued to SELLERS hereunder will be "restricted
securities" as defined in Rule 144 under the 33 Act and each
stock certificate issued to SELLERS hereunder, will bear the
usual restrictive legend to such effect. Appropriate Stop
Transfer instructions will be given to XXXXXXX'' stock
transfer agent.
2. Conditions Precedent to Closing (a) The obligations of
AGC and the SELLERS under this Agreement shall be and are
subject to fulfillment, prior to or at the Closing, of each
of the following conditions:
(i) That XXXXXXX'x and MANAGEMENT's representations
and
warranties contained herein shall be true and correct
at the time of Closing as if such representations and
warranties were made at such time, and MANAGEMENT will
deliver an executed certification confirming the
foregoing;
(ii) That XXXXXXX and MANAGEMENT shall have
performed or complied with all agreements, terms and
conditions required by this Agreement to be performed
or complied with by them prior to or at the time of the
Closing;
(iii) That XXXXXXX'x directors and shareholders, by
proper and sufficient vote taken either by consent or
at a meeting duly and properly called and held, shall
have properly approved all of the matters required to
be approved by XXXXXXX'x directors and shareholders,
respectively;
(iv) That XXXXXXX shall have filed the notice of
the
reverse split required by Rule 10b-17 under that Act,
and shall have sent notice to its stockholders of the
transactions contemplated herein; and
(v) That XXXXXXX shall have filed the Form D
contemplated by Section 12 herein and shall have
provided AGC and the CONSULTANTS (as defined in Section
12 herein) with a legal opinion that the shares issued
to CONSULTANTS, by virtue of the filing of Form D, are
freely tradeable without having been registered under
the 33 Act; and
(vi) That XXXXXXX'x Board of Directors, by proper
and sufficient vote, shall have approved this Agreement
and the transactions contemplated hereby; approved the
contemplated reverse split of XXXXXXX'x outstanding
Common Stock without changing either the authorized
shares or the par value; approved the change of
XXXXXXX'x corporate name to a name selected by AGC;
approved the resignation of all of XXXXXXX'x current
directors and the election of up to three designees of
AGC to serve as directors in place of XXXXXXX'x current
directors; and will have approved such other changes as
are consistent with this Agreement and approved by AGC
and XXXXXXX; and
(b) The obligations of XXXXXXX and MANAGEMENT under this
Agreement shall be and are subject to fulfillment, prior to
or at the Closing of each of the following conditions:
(i) That AGC's and SELLERS' representations and
warranties contained herein shall be true and correct
at the time of Closing as if such representations and
warranties were made at such time and AGC and the AGC
PRINCIPALS shall deliver an executed certification
confirming the foregoing;
(ii) That AGC and AGC PRINCIPALS shall have
performed or complied with all agreements, terms and
conditions required by this Agreement to be performed
or complied with by them prior to or at the time of
Closing; and
(iii) That AGC's officers will have signed non-
compete clauses in the form attached hereto as Exhibit
"J".
8 Termination This Agreement may be terminated at any
time
before or at Closing, by;
(a)The mutual agreement of the parties;
(b)Any party if:
(iv) Any provision of this Agreement
applicable
to a party shall be materially untrue or fail to
be accomplished on or before November 30, 1998
(v) Any legal proceeding shall have been
instituted
or shall be imminently threatening to delay,
restrain or prevent the consummation of this
Agreement.
Upon termination of this Agreement for any reason, in
accordance with the terms and conditions set forth in this
paragraph, each said party shall bear all costs and expenses
as each party has incurred and no party shall be liable to the
other.
9. Exhibits All Exhibits attached hereto are incorporated
herein by this reference as if they were set forth in their
entirety.
1. Miscellaneous Provisions This Agreement is the entire
agreement between the parties in respect of the subject
matter hereof, and there are no other agreements, written or
oral, nor may this Agreement be modified except in writing
and executed by all of the parties hereto. The failure to
insist upon strict compliance with any of the terms,
covenants or conditions of this Agreement shall not be
deemed a waiver or relinquishment of such rights or power at
any other time or times.
2. Closing The Closing of the transactions contemplated by
this Agreement ("Closing") shall take place at the offices
of Xxxxx X Xxxxxx, P.C. attorneys for Xxxxxxx Supply Inc, at
1.00 P.M. on the first business day after the letter of the
approval of SELLERS owning at least 80% of AGC's Common
Stock or the shareholders of XXXXXXX approving this
Agreement and the matters referred to in section 7(a)(vi)
herein, or such other date as the parties hereto shall
mutually agree upon. At the Closing, all of the documents
and items referred to herein shall be exchanged.
3. Prohibited Actions Between the date hereof and the
effective date of the merger, neither Purchaser nor Seller
will, except with the prior written consent of the other:
(a)issue or sell any stock, bonds, or other corporate
securities;
(b)incur any obligation or liability (absolute or
contingent), except current liabilities incurred, and
obligations under contracts entered into, other than in the
ordinary course of business;
(c) discharge or satisfy any lien or encumbrance or pay
any
obligation or liability (absolute or contingent) other than
in the ordinary course of business;
(d) make any dividend or other payment or distribution to
its shareholders or Purchase or redeem any shares of its
capital stock other than in the ordinary course of business;
(e)mortgage, pledge, create a security interest in, or
subject to lien or other encumbrance any of its assets,
tangible or intangible other than in the ordinary course of
business;
(f)sell or transfer any of its tangible assets or cancel
any
debts or claims except in each case in the ordinary course
of business other than in the ordinary course of business;
(g)sell, assign, or transfer any trademark, trade name,
patent, or other intangible asset;
(h)waive any right of any substantial value other than in
the ordinary course of business; or
(i) enter into any other transaction other than in the
ordinary course of business.
4. Further Instruments From time to time, as and when
requested by the either of the parties or by its successors
or assigns, the other party will execute and deliver, or
cause to be delivered, all such deeds and other instruments;
and will take or cause to be taken such further or other
action as the parties may deem necessary or desirable in
order to vest in and confirm to the purchaser title to and
possession of all its property, rights, privileges,
possessions, and franchises and otherwise to carry out the
intent and purposes of this agreement.
5. Fees and Commissions: (a) Except as described in this
Section 12, no broker, finder, or other person or entity is
entitled to any free or commission from XXXXXXX or AGC for
services rendered on behalf of XXXXXXX or AGC in connection
with the transactions contemplated by this Agreement. As
compensation for its services in initiating this transaction
and ongoing consulting services to XXXXXXX and AGC, XXXXXXX
agrees to issue to the individuals listed in Schedule 504
attached hereto, ("Type")(collectively, the CONSULTANTS"),
including their designees, a total of 100,000 post-reverse
split shares. All of these 100,000 shares shall be issued
at Closing under SEC Rule 504 pursuant to the Consulting
Agreements attached hereto as Exhibit 504.
(b) At the Closing, XXXXXXX'x attorney will provide a legal
opinion that upon the filing of an appropriate Form D, the
shares being issued to CONSULTANTS may be issued with no
restrictions on transfer under the 33 Act.
15. Governing Law This Agreement shall be governed by
and
construed in accordance with the internal laws of the State
of Delaware.
16. Counterparts This Agreement may be executed in
duplicate facsimile
counterparts, each of which shall be deemed an original
and together shall constitute one and the same binding
Agreement, with one counterpart being delivered to each
party hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals as of the date and year above first written.
XXXXXXX SUPPLY INC
By: ____________________________
____________________________
ATRIUM GROUP OF COMPANIES LIMITED
By: ____________________________
