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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated June .... . 1999 by and among Oxford Financial
Holdings, Ltd., a Colorado corporation (the "Company"), Mighty Xxxx USA, Ltd., a
Mississippi corporation ("Mighty Xxxx"), and the persons listed on Schedule A
hereto, being the holders of all of the outstanding shares of the capital stock
of Mighty Xxxx (each of whom may sometimes herein be referred to individually as
a "Stockholder" and collectively as the "Stockholders").
This Agreement sets forth the terms and conditions upon which the Stockholders
will sell to the Company, and the Company will purchase from the Stockholders,
53,022,950 shares of the common stock of Mighty Xxxx, no par value per share
(the Mighty Xxxx Stock"), representing all of the outstanding shares of capital
stock of Mighty Xxxx.
In consideration of the mutual agreements contained herein, intending to be
legally bound hereby, the parties hereto agree as follow:
ARTICLE I
SALE OF STOCK
1.01. Stock to be Sold. Upon the execution and delivery hereof (the date upon
which this Agreement is executed is sometimes herein referred to as the
"Closing"), subject to the terms and conditions of this Agreement, the
Stockholders will sell, assign, transfer and deliver the Mighty Xxxx Stock to
the Company free and clear of all liens, charges, options or encumbrances of
whatsoever nature.
1.02. Consideration. Subject to the terms and conditions of this Agreement, in
reliance on the representations, warranties and agreements of Mighty Xxxx and
the Stockholders contained herein, and in consideration of tile sale,
assignment, transfer and delivery of the Mighty Xxxx Stock, referred to in
Section 1.0 1. hereof upon the execution and delivery hereof, the Company Will
issue I to the Stockholders 0.3075 restricted shares of the Company's Common
Stock, no par value ("Stock") for each share of Mighty Xxxx Stock tendered by
them in collection herewith all as set forth in Schedule A. The Common Stock
shall have the rights and qualifications or restrictions as set forth in the
Company's Certificate of Incorporation, a copy of which is attached hereto as
Exhibit A (the "Certificate of Incorporation").
1.03. Additional Documents to be Delivered. At the Closing, the parties shall
deliver the documentation set forth below:
(a) The Stockholders will deliver to the Company certificates representing
53,022,950 shares of Mighty Xxxx Stock, along with stock powers with respect to
said shares endorsed in blank.
(b) The Company will deliver to Mighty Xxxx and the Stockholders (1) executed
copies of the consents if any referred to in Section 7.14 hereof-, (ii) the
opinion of counsel substantially in the form attached hereto as Exhibit B, (iii)
the resignations of the officers and directors of the Company dated the date of
the Closing, (iv) resolutions of the Board of Directors of the Company and the
holders of a majority of the outstanding shares of the Company's Common Stock
approving the certain amendments to the Company's Certificate of Incorporation
and authorizing the filing of the Certificate of Amendment, (y) the cold comfort
letter of the Companys certified public accountants, and (vi) all other
previously undelivered documents required to be delivered by the Company to
Mighty Xxxx at or prior to the Closing in connection with the transactions
contemplated by this Agreement.
1.04. Further Assurances. After the execution hereof, Mighty Xxxx and the
Stockholders shall from time to time, at the request of the Company and without
further cost or expense to the Company, execute and deliver such other
instruments of conveyance and transfer and take such other actions as the
Company may reasonably request, in order to more effectively consummate the
transactions contemplated hereby AND TO VEST IN THE COMPANY GOOD AND marketable
title to the shares of Mighty Xxxx Stock being transferred hereunder and the
current members of the Board of Directors and the current officers of the
Company shall from time to time, at the request of the Stockholders and without
further cost or
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expense to the Stockholders, execute and deliver such other documents and
instruments and take such other actions as the Stockholders may reasonably
request, in order to more effectively consummate the transactions contemplated
hereby.
ARTICLE II
CANCELLATION OF CERTAIN SHARES OF PREFERRED STOCK AND COMMON
STOCK BY THE COMPANY AND THE PRINCIPALS
2.01. On the Closing Date, simultaneously with the consummation of the
transactions contemplated hereby, the Company shall immediately thereafter
cancel and retire 335,000 shares of the Preferred Stock. After the cancellation
of said shares, there will be no shares of Preferred Stock issued and
outstanding and 2,400,000 shares of Common Stock issued and outstanding in the
Company. The number of shares of Company Stock to be issued to Mighty Xxxx
shareholders on the Closing Date is set forth opposite his respective name on
Schedule A attached hereto.
2.02. Change of Name. The Company's Board of Directors shall have approved a
name change to Mighty Xxxx USA, Ltd.
2.03. Resignation of Directorships and Officership of the Company at Closing.
Xxxx Xxxxxxxx and Xxxx Xxxxxxxx agree that at the time of Closing, each of them
will resign their respective officerships and directorships with the Company,
effective as of the Closing Date.
ARTICLE III
SHAREHOLDER APPROVALS AND INFORMATION STATEMENT
3.01. Shareholder Approvals. A meeting of the shareholders of the Company shall
be held on or before the Closing Date, to consider and act upon the transactions
contemplated by this Agreement. Completion of the transactions set forth herein
is contingent upon approval of this 51 % Agreement and those transactions
contemplated herein by the holders of not less than 51% of the outstanding
Company Stock, or by any larger number of shares required by and in accordance
with applicable law.
3.02. Information Statement. Company has prepared (or will prepare) an
Information Statement and related materials to be used in connection with a
special meeting of shareholders of Company pursuant to Section 3.0 1. above,
which meeting shall be held no later than June ..., 1999 unless all parties
hereto unanimously consent in writing to hold such meeting at a mutually agreed
upon later date.
3.03. Company shall not be obligated to conclude the acquisition of Mighty Xxxx
Securities unless there shall be delivered to it at the closing all of the
shares of Mighty Xxxx Securities as listed on Schedule A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MIGHTY XXXX
MIGHTY Xxxx hereby make the following representations and warranties to Company,
each of which is true and correct on the date hereof and shall be true and
correct at Closing:
4.01. Due Incorporation. Good Standing and Qualification. Mighty Xxxx is a
corporation duty organized, validly existing and in good standing under the laws
of the state of Mississippi with all requisite corporate power and authority to
own, operate and lease its properties and to carry on its business as it is now
being conducted. The copies of the Certificate of Incorporation and By-Laws
heretofore delivered to the Company are complete and correct copies of such
instruments as presently in effect.
4.02. Corporate Authority. Mighty Xxxx has the full corporate power and
authority to enter into this Agreement and (subject to any requisite approval by
the Shareholders of Mighty Xxxx) to carry out the transactions contemplated by
this
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Agreement, and this Agreement is a valid and binding Agreement of Mighty Xxxx
enforceable in accordance with the terms, except that (i) such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors rights, and (ii)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefore may be brought. The Board of Directors of
Mighty Xxxx has unanimously and duly authorized the execution, delivery and
performance of this Agreement.
4.03. Capital Structure. As of the date of this Agreement, the authorized
Capital Stock of Mighty Xxxx consists of (i) 75,000,000 shares of Common Stock
with no par value, of which 53,022,950 shares are issued and outstanding and no
shares are held in the treasury of Mighty Xxxx and (ii) 2,000,000 shares of
Preferred Stock none of which shares are issued. Except as may be specifically
described herein or in Mighty Xxxx'x Certificate of Incorporation and/or in the
Company's Information Statement, there are no options, warrants, rights,
stockholder agreements or other agreements or instruments outstanding giving any
person and/or firm the right to acquire any shares of Mighty Xxxx securities and
there are no commitments to issue any options, warrants or rights to acquire
shares of Mighty Xxxx Securities except as set forth in Section 4.03. of the
Disclosure Schedule.
4.04. Subsidiaries. Except as set forth in Section 4.04. to the Disclosure
Schedule Mighty Xxxx has no subsidiaries.
4.05. Litigation. To the best of its knowledge there are no pending or
threatened material suits, legal proceedings, claims or governmental
investigations of any kind against or with respect to Mighty Xxxx, the Might
Xxxx Shareholders and/or Mighty Xxxx'x assets or any basis for any such material
suit, legal proceeding, claim or governmental investigation which would
individually, or in the aggregate, have a materially adverse effect on the
business or properties of Mighty Xxxx, except as may be set forth herein and/or
in Schedule 4.05. of the Disclosure Statement hereto.
4.06. Taxes. Mighty Xxxx has filed all applicable federal, state, local and
foreign tax returns required to be filed to date in accordance with the
provisions of law pertaining thereto, and has paid all taxes, interest,
penalties and assessments (including, without limitation, income, withholding,
excise, unemployment, social security, occupation, transfer, Franchise,
property, sales and use taxes, and all penalties and interest in respect
thereof) required to have been paid to date.
4.07. Governmental Consent. To the best of Mighty Xxxx'x knowledge, no permit,
consent, approval or authorization or filing with, any governmental regulatory
authority or agency is required of Mighty Xxxx in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby.
4.08. Compliance with Laws. Mighty Xxxx has not received any notice that it is
not in compliance with all material applicable existing requirements of laws,
(foreign, federal, state and local) and all existing applicable material
requirements of governmental bodies or agencies having jurisdiction over it and
to the best of its knowledge has all necessary licenses (foreign, federal, state
and/or local) required of it in order to conduct its current business
activities.
4.9. Conflict with Documents. Except as may be specifically provided for herein,
neither the execution, delivery and performance of this Agreement by Mighty
Xxxx, nor the consummation of the transactions contemplated hereby, either
immediately or with the passage of time or the giving of notice or both will:
(a) conflict with or cause a breach or default under any of the terms and
conditions of, or result in a termination or modification of or cause any
acceleration of any material obligations of Mighty Xxxx under any contract,
lease or other instrument to which Mighty Xxxx is bound; or
(b) conflict with any material provisions of Mighty Xxxx'x Certificate of
Incorporation, By-Laws or any other laws or regulations by which Mighty Xxxx is
bound; or
(c) result in the creation or imposition of any liens, charges or encumbrances
against Mighty Xxxx or any of its assets.
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4.10. Absence of Material Changes. Except as specifically set forth herein or
in Section 4. 10. of the Disclosure Document hereto or in Mighty Xxxx'x
Financial Statements since the date of the report referred to in Section 4
hereof
(a) There has not been any change materially adversely affecting the financial
condition of Mighty Xxxx;
(b) Mighty Xxxx has operated its business in the ordinary course of business;
(c) Mighty Xxxx has maintained its books, accounts and records in the usual,
customary and ordinary manner; and (d) Mighty Xxxx has not borrowed any money
outside the ordinary course of business other than as indicated in the Notes to
its aforesaid Financial Statements.
4.11. Statements and Other Documents Not Misleading. No provisions of this
Agreement relating to Mighty Xxxx or any other document, schedule or other
information furnished by Mighty Xxxx to Company in connection with the
execution, delivery and performance of this Agreement, or specifically being
identified as having been furnished by Mighty Xxxx in Company's Information
Statement, contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact required to be stated in order to
make the statements, in light of the circumstances in which it is made, not
misleading.
4.12. Acknowledgment of Awareness of Mighty Xxxx of Company's Intent to Become a
12(g) Reporting Company. Mighty Xxxx acknowledges being advised by Company that:
(a) Company is not currently subject to the reporting requirements of Section 13
or 15(d) of the Securities Exchange Act of 1934, but was intending to file a
Form 10 (or if applicable Form 10-SB) so as to register its securities pursuant
to Section 12(g) of the 1934 Act, which filing shall now be undertaken by Mighty
Xxxx and its counsel after the Closing Date.
(b) After the Closing Date, Mighty Xxxx and its counsel shall file the aforesaid
Form 10 (or Form I O-SB).
(c) Mighty Xxxx shall be required to furnish such information concerning Mighty
Xxxx as may be required by applicable laws, rules and regulations, including but
not limited to, certified Financial Statements of Mighty Xxxx since its
inception through the close of its current fiscal (or calendar) year (or such
shorter period of time as may be necessary) and unaudited Financial Statements
for any interim periods as may be required.
4.13. Mighty Xxxx agrees that for one year following the Company's Closing Date
it shall not,
(a) reverse split its shares of common stock or
(b) issue by reclassification, reorganization or recapitalization of its Common
Stock any, shares of Common Stock or other securities of the Company; or
distribute, without receiving services or other consideration therefor,
evidences of its indebtedness or assets, or rights, options or warrants or
convertible or exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock except that Mighty Xxxx may acquire other
entities as long as it remains in control of such merged entity or is the
successor thereof.
ARTICLE V
TITLE TO THE SHARES
Each of the Mighty Xxxx Shareholders shall represent and warrant to the Company
as follows:
5.01. Ownership of Company Stock. The Stockholder is the sole lawful,
beneficial, and record owner of the shares of Mighty Xxxx Stock listed on
Schedule and has good and marketable title to such shares.
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5.02. Power and Authority. The Stockholder has full right, power, and authority
to execute and deliver, and to perform his obligations under, this Agreement and
this Agreement has been duly executed and delivered by him and constitutes his
valid and binding obligation.
5.03. Restricted Stock: Investment Intent.
(a) The shares of Common Stock issuable to the Stockholders pursuant to the
terms hereof have not been registered under the Securities Act of 1933, as
amended (the "Act") or any state securities acts and is issued in reliance upon
certain exemptions contained in federal securities laws. There are substantial
restrictions on the transferability of the shares of Common Stock.
(b) The shares of Common Stock are being acquired solely for the account of the
Stockholder for investment and not with a view to or for the resale,
distribution, sub-division or fractionalization thereof, and the Stockholder has
no plans to enter into, and have not entered into, any contract, undertaking,
agreement or arrangement to such end.
(c) Each certificate representing the shares of Common Stock issuable hereunder
and any other securities issued in respect of the shares of Common Stock, upon
any stock split, stock dividend, recapitalization, merger, consolidation or
similar event, shall (unless otherwise permitted or unless the shares of Common
Stock evidenced by such certificate shall have been registered under the Act)
also be stamped or otherwise imprinted with a legend substantially in the
following form (in addition to any legend required under applicable state
securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATE- AS TO THE SECURITIES UNDER SAID ACT
AND ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED"
(d) Upon request of the holder of such a certificate, the Company shall remove
the foregoing legend from the certificate or issue to such holder a new
certificate therefore free of any transfer legend, if, with such request, the
Company shall have received either (1) an opinion from, legal counsel to the
Stockholder, which such counsel shall be reasonably acceptable to the Company,
which approval shall not be unreasonably withheld nor unduly delayed or (ii) a
"no action" letter from the Securities and Exchange Commission ("SEC") to the
effect that any transfer by such holder of the securities evidenced by such
certificate will not violate the Act and applicable state securities laws.
(e) The Common Stock issuable to the Stockholders hereunder shall not be
transferable, except upon the conditions specified in this Article VI which
conditions are intended among other things, to insure compliance with the
provisions of the Act. The Stockholders agree to cause any proposed transferee
of the shares of Common Stock to agree to take and hold those securities subject
to the provisions and upon the conditions specified in this Article VI.
5.04. No Registration of Shares. The Stockholder acknowledges that the shares of
Common Stock issuable pursuant hereto have not been registered under the Act and
are being or will be issued by reason of an exemption from the registration
provisions of the Act which depends upon, among other things, the bona fide
nature of the investment intent as expressed herein; that the Company currently
is under no obligation to register any of said shares of Common Stock, and that
none of such shares may be resold unless subsequently registered under the Act
or unless an exemption from registration is available.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY,
THE MEMBERS OF COMPANY'S BOARD OF DIRECTORS
AND ITS OFFICERS IMMEDIATELY PRIOR TO THE CLOSING
The Company and each of the members of the Board of Directors and the
officers of the Company immediately prior to the Closing (which such persons are
herein referred to as "Company Management") hereby represent, covenant and
warrant to Mighty Xxxx and the Stockholders as follows:
6.0 1. Cooperate organization. Etc. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado
and has Rill corporate power and authority to carry on its business as it is now
being conducted and to own the properties and assets it now owns; is duly
qualified or licensed to do business as a foreign corporation in good standing
in the jurisdictions listed in Section 7.01 of the Disclosure Schedule, which
are all the jurisdictions in which such qualification is required. The copies of
the Certificate of Incorporation and By-Laws of the Company heretofore delivered
to Mighty Xxxx are complete and correct copies of such instruments as presently
in effect.
6.02. Capitalization of the Company. As of the date of this Agreement, the
authorized capital stock of the Company consists of (a) 50,000,000 shares of
common stock, no par value per share, of which 2,400,000 shares are issued and
outstanding and no shares are held in the treasury of the Company, and (b)
5,000,000 shares of preferred stock with no par value of which 335,000 shares
are issued and outstanding. All issued and outstanding shares of capital stock
of the Company are validly issued, fully paid and nonassessable. Except as
described in Section 7.02 of the Disclosure Schedule, there are no outstanding
(a) securities convertible into or exchangeable for capital stock of the
Company-, (b) options, warrants or other rights to purchase or subscribe to
capital stock of the Company or securities convertible into or exchangeable for
capital stock of the Company; or (c) contracts, commitments, agreements,
understandings or arrangements of any kind relating to the issuance of any
capital stock of the Company, any such convertible or exchangeable securities or
any such options, wan-ants or rights.
6.03. Subsidiaries and Affiliates. The Company does not own, directly or
indirectly, any capital stock or other equity securities of any corporation or
have any direct or indirect equity or ownership interest in any business.
6.04. Authorization, Etc. The Company has full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
The Board of Directors of the Company has taken all action required by law, the
Company's Certificate of Incorporation, its By-Laws or otherwise to be taken by
it to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and this Agreement is a
valid and binding agreement of the Company enforceable in accordance with its
terms, except that (a) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court which any proceeding
therefore may be brought.
6.05. No Violation. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate any provision
of the Certificate of incorporation or By-Laws of the Company, or violate, or
are in conflict with, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or cause the
acceleration of the maturity of any debt or obligation pursuant to, or result in
the creation or imposition of any security interest, lien or other encumbrance
upon any property or assets of the Company under, any agreement or commitment to
which the Company is a party or by which the Company is bound, or to which the
property of the Company is subject, or violate any statute or law or any
judgement, decree, order, regulation or rule of any court or governmental
authority.
6.06. Financial Statements. The Company has heretofore delivered to Xxxxxx Xxxx
an Audited Financial of the Company as at June 30 in each of the years 1997 and
1998, and through March 31, 1999 all certified by Xxxx, Xxxxx & Associates,
P.C., independent certified public accountants, whose reports thereon are
included therein. Such balance sheets and the notes thereto are true, complete
and accurate and fairly present the assets, liabilities and financial condition
of the Company as at the respective dates thereof, and such statements of
operations, stockholders' equity and cash flows and the notes thereto are true,
complete and accurate and fairly present the results of operations for the
periods therein referred to; all in accordance with generally accepted
accounting principles consistently applied throughout the periods involved.
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6.07. No Undisclosed Liabilities, Etc. The Company has no liabilities or
obligations of any nature (absolute, accrued, contingent or otherwise) which
were not fully reflected or reserved against in the Company Balance Sheet,
including reserves for all federal income and other taxes and all other
liabilities of the Company at such dates, and the reserves reflected in the
Company Balance Sheet are adequate, appropriate and reasonable.
6.08. Interim Operations. Since the date of the Company Balance Sheet, the
business of the Company has been conducted only in the ordinary and usual course
consistent with past practice. Since the date of the Balance Sheet, there have
not been any material adverse changes in the financial condition of the Company.
Neither the Company nor Company Management is aware of any circumstances which
may cause the Company to suffer any material adverse change in its financial
condition.
6.09. Absence of Certain Changes. Except as and to the extent set forth in
Section 7.09. of the Disclosure Schedule, since the date of the Company Balance
Sheet, the Company has not:
(a) Suffered any material adverse change in its working capital, financial
condition, assets, liabilities (absolute, accrued, contingent or otherwise),
reserves, business, operations or prospects;
(b) Incurred any liabilities or obligations (absolute, accrued, contingent or
otherwise) or increased, or experienced any change in any assumptions underlying
or methods of calculating, any bad debt, contingency or other reserves;
(c) Paid, discharged or satisfied any claim, liabilities or obligations
(absolute, accrued, contingent or otherwise) other than the payment, discharge
or satisfaction in the ordinary course of business and consistent with past
practice of liabilities and obligations reflected or reserved against in the
Balance Sheet or incurred in the ordinary course of business and consistent with
past practice since the date of the Balance Sheet;
(d) Permitted or allowed any of its property or assets (real, personal or mixed,
tangible or intangible) to be subjected to any mortgage, pledge, lien, security
interest, encumbrance, restriction or charge of any kind;
(e) Declared, paid or set aside for payment any dividend or other distribution
in respect of its capital stock or redeemed, purchased or otherwise acquired,
directly or indirectly, any shares of capital stock or other securities of the
Company;
(f) Made any change in any method of accounting or accounting practice;
(g) Paid, loaned or advanced any amount to, or sold, transferred or leased any
properties or assets (real, personal or mixed, tangible or intangible) to, or
entered into any agreement or arrangement with, any of its officers or directors
or any affiliate or associate of any of its officers or directors; or
(h) Agreed, whether in writing or otherwise, to take any action described in
this Section.
6.10. Taxes. 'The Company has duly filed all tax reports and returns required
to be filed by it and has duly paid all taxes and other charges due or claimed
to be due from it by federal, state, local or foreign taxing authorities
(including, without limitation, those due in respect of the properties, income,
The licenses, sales or payrolls of any of it); the reserves for taxes reflected
in the Company Balance Sheet are adequate; and there are no tax liens upon any
property or assets of the Company. The federal income tax returns of the Company
have been examined by the Internal Revenue Service for all periods to and
including those set forth in Section 6. 1 0.(a) of the Disclosure Schedule; and,
except to the extent shown therein, all deficiencies asserted as a result of
such examinations have been paid or finally settled and no issue has been raised
by the Internal Revenue Service in any such examination which, by application of
the same or similar principles, reasonably could be expected to result in a
proposed deficiency for any other period not so examined. Further, no state of
facts exists or has existed which would constitute grounds for the assessment of
any tax liability with respect to the periods which have not been audited by the
Internal Revenue Service. Except to the extent set forth in Section 6. 10. of
the Disclosure Schedule, there are no outstanding agreements or waivers
extending the statutory period of limitation applicable to any federal income
tax return for any period. Copies of all income tax returns for the Company in
respect of all years not barred by the statute of limitations have heretofore
been delivered by the Company to Mighty Xxxx and all such returns are listed in
Section 6. 1 0.(b) of the Disclosure Schedule.
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6.11. Contracts and Commitments. The Company is not a party to any agreements or
contracts from which any rights and privileges inure to or obligations which are
the responsibility of, tile Company.
6.12. Litigation. There is no action, suit, inquiry, proceeding or investigation
by or before any court or governmental or other regulatory or administrative
agency or commission pending, threatened against or involving the Company, or
which questions or challenges the validity of this Agreement or any action taken
or to be taken by the Company pursuant to this Agreement or in connection with
the transactions contemplated hereby, and the Company does not know or have any
reason to know of any valid basis for any such action, proceeding or
investigation. The Company is not in default under or in violation of, nor is
there nor does it know of any valid basis for any claim of default under or
violation of, any contract, commitment or restriction to which it is a party or,
by which it is bound. The Company is not subject to any judgement, order or
decree entered in any lawsuit or proceeding which may have an adverse effect on
its business practices or on its ability to acquire any property or conduct its
business in any area.
6.13. Consents and Approvals of Governmental
No consent, approval or authorization of or declaration, filing or registration
with, any governmental or regulatory authority is required in connection with
the execution, delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby.
6.14. Consents. No consent of any person is necessary to the consummation of the
transactions contemplated hereby, including, without limitation, consents from
parties to loans, contracts, leases or other agreements.
6.15. Compliance with Law. The operations of the Company have been conducted in
accordance with all applicable laws, regulations and other requirements of all
national governmental authorities, and of all states, municipalities and other
political subdivisions and agencies thereof, having jurisdiction over the
Company, including, without limitation, all such laws, regulations and
requirements relating to antitrust, consumer protection, currency exchange,
equal opportunity, health, occupational safety, pension, securities and
trading-with-the-enemy matters. The Company has not received any notification of
any asserted present or past failure by the Company to comply with such laws,
rules or regulations.
6.16. Environmental Protection. The operations of the Company have been
conducted in accordance with all laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants, or hazardous or
toxic materials or wastes into ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants, contaminants
or hazardous or toxic materials -or wastes. Neither the Company nor Company
Management is aware of nor has the Company received notice of any past, present
or future events, conditions, circumstances, activities, practices, incidents,
actions or plans which may interfere with or prevent continued compliance, or
which may give rise to any common law or legal liability, or otherwise form the
basis of any claim, action, suit, proceeding, hearing or investigation, based on
or related to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling, or the emission, discharge, release or
threatened release into the environment, of any pollutant, contaminant, or
hazardous or toxic material or waste.
6.17. Brokers and Finders. Except for Intercontinental Holding Company, neither
the Company nor any of its officers or directors nor any of the Principals nor
any of their respective affiliates, has employed any broker or finder or
incurred any liability for any brokerage fees or commissions or the like in
connection with this Agreement and the transactions contemplated hereby, and the
principals jointly and severally shall indemnify and hold Mighty Xxxx, the
Company and the Mighty Xxxx Shareholders harmless from and against any liability
for any of the same, together with all costs of defending any claims or demands
for the same, including but not limited to reasonable attorney fees.
6.18. Disclosure. All information relating to or concerning the Company set
forth herein or provided to Mighty Xxxx and/or the Stockholders or their
respective representatives and counsel in connection with the transactions
contemplated
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hereby is true and correct in all material respects and does not fail to state
any material fact necessary in order to make the statements herein or therein,
in light of the circumstances under which they were made, not misleading. The
Company confirms that it has not provided to Mighty Xxxx or any of the
Stockholders or any of their representatives, agents or counsel any information
that constitutes or might constitute material nonpublic information. The Company
understands and confirms that the Stockholders shall be relying on the foregoing
representation in effecting transactions contemplated hereby.
6.19. Conflict With Documents. Neither the execution, delivery and performance
of this Agreement by Company nor the consummation of the transactions
contemplated hereby, either immediately or with the passage of time or the
giving of notice or both win:
(a) Conflict with or cause a breach or default under any of the terms and
conditions of or result in termination or modification of or cause any
acceleration of any obligations of Company under any contract, lease or other
instrument to which Company is bound; or
(b) Conflict with or violate the provisions of COMPANY'S Certificate of
Incorporation, as and if amended and By-Laws or any other laws or regulations by
which Company is bound; or
(c) Result in the creation or imposition of any lien, charge or encumbrance
against Company or any of its assets.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF MIGHTY XXXX
Mighty Xxxx and the Stockholders hereby represent, covenant and wan-ant to the
Company as follows:
7.01. Corporate Organizations, Etc. Mighty Xxxx is a corporation duly organized,
validly existing and in good standing under the laws of the State of Mississippi
and has full corporate power and authority to carry on its business as it is now
being conducted and to own the properties and assets it now owns. The copies of
the Certificate of Incorporation and By-Laws of Mighty Xxxx heretofore delivered
to the Company are complete and correct copies of such instruments as presently
in effect.
7.02. Capitalization of Mighty Xxxx. As of the date of this Agreement, the
authorized capital stock of Mighty Xxxx consists of 1,000,000 shares of Class A
Preferred Stock of which none are issued and outstanding, 1,000,000 shares of C
lass B Preferred Stock of which none are issued, and outstanding, and 75,000,000
shares of Common Stock with no par value, of which are issued and outstanding.
All issued and outstanding shares of capital stock of Mighty Xxxx are validly
issued, fully paid and nonassessable. There are no outs ding (a) securities
convertible into or exchangeable for capital stock of Mighty Xxxx; (b) option ,
warrant or other rights to purchase or subscribe to capital stock of Mighty Xxxx
or securities convertible into or exchangeable for capital stock of Mighty Xxxx;
or (c) contracts, commitments, agreements, understandings or arrangements of any
kind relating to the issuance of any capital stock of Mighty Xxxx, any such
convertible or exchangeable securities or any such options, warrants or rights.
7.03. Authorization, Etc. Mighty Xxxx has full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
The Board of Directors of Mighty Xxxx has taken all action required by law,
Mighty Xxxx'x Certificate of Incorporation, its By-Laws or otherwise to be taken
by them to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and this Agreement is a
valid and binding agreement of Mighty Xxxx enforceable in accordance with its
terms, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought.
7.04. No Violation. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate any provision
of the Certificate of Incorporation or By-Laws of Mighty Xxxx, or
10
violate, or be in conflict with, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, any
agreement or commitment to which Mighty Xxxx is a party or by which Mighty Xxxx
is bound, or to which the property of Mighty Xxxx is subject, or violate any
statute or law or any judgement, decree, order, regulation or rule of any court
or governmental authority.
7.05. Subsidiaries and Affiliates. Except as described in Section 7.04. to the
Disclosure Schedule, the Company does not own, directly or indirectly, any
capital stock or other equity securities of any corporation or have any direct
or indirect equity or ownership interest in any business.
7.06. Financial Statements. Mighty Xxxx has heretofore delivered to the Company
an unaudited balance sheet of Mighty Xxxx as of November 1998 and for the 4
month period ended April 30, 1999 (the balance sheet for the period ended is
herein referred to as the "Mighty Xxxx Balance Sheet" ) prepared by management
of Mighty Xxxx. Such balance sheets and the notes thereto are true, complete and
accurate and fairly present the assets, liabilities and financial condition of
Mighty Xxxx as at the respective dates thereof, and such statements of
operations, stockholders' equity and cash flows and the notes thereto are true,
complete and accurate and fairly present the results of operations for the
period therein referred to; all in accordance with generally accepted accounting
principles consistently applied throughout the periods involved.
7.07. No Undisclosed Liabilities, Etc. The Company has no liabilities or
obligations of any nature (absolute, accrued, contingent or otherwise) which
were not fully reflected or reserved against in the Mighty Xxxx Balance Sheet,
including reserves for all federal income and other taxes and all other
liabilities of the Company at such dates, and the reserves reflected in the
Mighty Xxxx Balance Sheet are adequate, appropriate and reasonable.
7.08. Interim Operations. Since the date of the Mighty Xxxx Balance Sheet the
business of the Company has been conducted only in the ordinary and usual course
consistent with past practice. Since the date of the Mighty Xxxx Balance Sheet,
there have not been any material adverse changes in the financial condition of
the Company. Neither Mighty Xxxx nor its management is aware of any circum tan
es which may cause Mighty Xxxx to suffer any material adverse change in its
financial condition.
7.09. Absence of Certain Changes. Except as and to the extent set forth in
Section 7.09. of the Disclosure Schedule, since the date of the Mighty Xxxx
Balance Sheet, Might Xxxx has not:
(a) Suffered any material adverse change in its working capital, financial
condition, assets, liabilities (absolute, accrued, contingent or otherwise),
reserves, business, operations or prospects;
(b) Incurred any liabilities or obligations (absolute, accrued, contingent or
otherwise) or increased, or experienced any change in any assumptions underlying
or methods of calculating, any bad debt, contingency or other reserves; (c)
Paid, discharged or satisfied any claim, liabilities or obligations (absolute,
accrued, contingent or otherwise) other than the payment, discharge or
satisfaction in the ordinary course of business and consistent with past
practice of liabilities and obligations reflected or reserved against in the
Mighty Xxxx Balance Sheet or incurred in the ordinary course of business and
consistent with past practice since the date of the Mighty Xxxx Balance Sheet.
(d) Permitted or allowed any of its property or assets (real, personal or mixed,
tangible or intangible) to be subjected to any mortgage, pledge, lien, security
interest encumbrance, restriction or charge of any kind;
(e) Declared, paid or set aside for payment any dividend or other distribution
in respect of its capital stock or redeemed, purchased or otherwise acquired,
directly or indirectly, any shares of capital stock or other securities of
Mighty Xxxx;
(f) Made any change in any method of accounting or accounting practice;
11
(g) Paid, loaned or advanced any amount to, or sold, transferred or leased any
properties or assets (real, personal or mixed, tangible or intangible) to, or
entered into any agreement or arrangement with, any of its officers or directors
or any affiliate or associate of any of its officers or directors; or
(h)Agreed, whether in writing or otherwise, to take any action described in this
Section. 7. 10. Taxes. Except as described in Section 7. 10. of the Disclosure
Schedule, Mighty Xxxx has duly filed all tax reports and returns required to be
filed by it and has duly paid all taxes or other charges due or claimed to be de
from it by federal, state, local or foreign taxing authorities (including,
without limitation, those due in respect of the properties, income, franchises,
licenses, sales or payrolls of any of it); the reserves for taxes reflected in
the Mighty Xxxx Balance Sheet are adequate; and there are no tax liens upon any
property or assets of Mighty Xxxx.
7.11. Patents, Trademarks, Trade Names, Etc. Mighty Xxxx owns, or is licensed or
otherwise has the full right to use, all patents, trademarks and trade names
used in or necessary for the conduct of the business as heretofore, or as may
hereafter be, conducted. Section 7.11. of the Disclosure Schedule contains an
accurate and complete description of all patents, trademarks, trade names and
copyrights used or proposed to be used by Mighty Xxxx. The consummation of the
transactions contemplated hereby will not alter or impair any such rights; no
claims have been. asserted by any person to the use of any such patents,
trademarks or trade names or challenging or questioning the validity or
effectiveness of any such license or agreement, and Mighty Xxxx does NOT KNOW OF
ANY VALID BASIS FOR any such claim; and the use of such patents, trademarks,
trade names or copyrights by Mighty Xxxx does not infringe on the rights of any
person.
7.12. Contracts and Commitments. Except as set forth in Section 7.12. of the
Disclosure Schedule:
(a) Mighty Xxxx is not party to any agreements, contracts, commitments or
restrictions which are material to its business, operations or prospects or
which require the making of any charitable contribution;
(b) No purchase contracts or commitments of Mighty Xxxx continue for a period of
more than 12 months or are in excess of the normal, ordinary and usual
requirements of business or at any excessive price; except for contracts between
Product Services Company, Inc. and Delta Pine and Land Company to be assigned to
Xxxxxx Xxxx and on asset purchase contract with Xxx Xxxxxxxxx and Product
Services Co. Inc.
(c) There are no outstanding sales contracts, commitments or proposals of Mighty
Xxxx which continue for a period of more than 12 months or will result in any
loss to Mighty Xxxx on completion or performance thereof after allowance for
direct distribution expenses;
(d) Mighty Xxxx has no outstanding contracts with officers, employees, agents,
consultants, advisors, salesmen, sales representatives, distributors or dealers
that are not;
(e) Mighty Xxxx has no employment agreement, or any other agreement that
contains any severance or any severance or termination pay liabilities or
obligations;
(f) Mighty Xxxx is not party to any collective bargaining or union contracts or
agreements;
(g) Mighty Xxxx is not in default, nor is there any known basis for any valid
claim of default, under any contract made or obligation owed by it;
(h) Mighty Xxxx has no power of attorney outstanding or any obligations or
liabilities (whether absolute, accrued, contingent or otherwise), as guarantor,
surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the
obligation of any person, corporation, partnership, joint venture, association,
organization or other entity.
12
7.13. Agreements in Full Force and Effect. All contracts, agreements, plans,
leases, policies and licenses referred to in the Disclosure Schedule are valid
and in full force and effect, and true copies thereof have been heretofore made
available to Acquiror.
7.14. Litigation. There is no action, suit, inquiry, proceeding or investigation
by or before any court or governmental or other regulatory or administrative
agency or commission pending or, to the best knowledge of Mighty Xxxx,
threatened against or involving Mighty Xxxx, or which questions or challenges
the validity of this Agreement or any action taken or to be taken by Mighty Xxxx
pursuant to this Agreement or in connection with the transactions contemplated
hereby-, and Mighty Xxxx does not know or have any reason to know of any valid
basis for any such action, proceeding or investigation. Mighty Xxxx is not
subject to any judgement, order or decree entered in any lawsuit or proceeding
which may have an adverse effect on its business practices or on its ability to
acquire any property or conduct its business in any area.
7.15. Consents and Approvals of Governmental Authorities. No consent, approval
or authorization of or declaration, filing or registration with, any
governmental or regulatory authority is required in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby.
ARTICLE VIII
COVENANTS OF MIGHTY XXXX AND THE STOCKHOLDERS
Mighty Xxxx and the Stockholders hereby covenant and agree with the
Company as follows:
8.01 Full Access. MIGHTY Xxxx has afforded to the Company and its counsel,
accountants and other representatives full access to the offices, properties,
books and records of Mighty Xxxx in connection with the investigation into the
affairs of Mighty Xxxx as the Company has requested.
8.02. Supplements to Disclosure Schedule. From time to time prior to the
Closing, Mighty Xxxx will promptly supplement or amend the Disclosure Schedule
with respect to any matter hereafter arising which, if existing or occurring at
the date of this Agreement, would have been required to be set forth or
described in the Disclosure Schedule. No supplement or amendment of the
Disclosure Schedule made pursuant to this section shall be deemed to cure any
breach of any representation of or warranty made in this Agreement unless the
Company specifically agrees thereto in writing.
8.03. Certificates. At the Closing, Mighty Xxxx and the Stockholders will
furnish the Company with such certificates of its officers and others to
evidence compliance with the covenants set forth in this Article VIII as may be
reasonably requested by the Company.
ARTICLE IX
COVENANTS OF COMPANY AND PRINCIPALS
From the date hereof until the Closing Date, Company shall and Principals shall
cause Company to:
9.01. File as promptly as practicable after the date of its special meeting of
shareholders referred to in Section 3 (a) hereof a Form 10 Registration
Statement describing the transactions contemplated by this Agreement, and
13
shall have complied with all required SEC requirements in accordance with
applicable filings, rules and regulations in connection with the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby.
9.02. Conduct its business activities and affairs in the ordinary course of
business.
9.03. Use its best efforts to preserve its business organization intact.
9.04. Properly and promptly give Mighty Xxxx notice of any change in its
financial condition, business or affairs.
9.05. Not mortgage, pledge, transfer or assign any of its assets, nor dissolve,
liquidate, cease to do business as a going concern or. merge with any other
entity.
9.06. Maintain its books and records in a manner consistent with past practices.
9.07. Not incur any liabilities or contingent liabilities; and not enter into
any agreements (except as may be indicated in this Acquisition Agreement).
9.08. Make available for inspection all books and records or other information
which Mighty Xxxx may reasonably request from time to time as Mighty Xxxx xxxx
necessary or appropriate to evaluate the business, affairs and financial
condition of Company.
9.09. Company and Principals shall and Principals shall cause Company and their
respective representatives to: (i) retain as confidential and not to reveal to
any others for any reason whatsoever all information furnished by Mighty Xxxx or
at its request, concerning Mighty Xxxx, its present and proposed business, its
financial condition, and its officers, directors and Mighty Xxxx Shareholders;
and (ii) not, directly or indirectly, use any such information to compete in any
way with any present or presently contemplated business of Mighty Xxxx.
9.10. Company shall not issue any public statement, cause any press releases to
be issued or cause any mailings to its stockholders to be made regarding any of
the transactions contemplated herein without first providing and obtaining
Mighty Xxxx Principals Shareholders' written consent regarding publication of
such statements, which consent shall not be unreasonably withheld.
9.11. Company shall prepare and annex as Exhibit hereto a complete schedule of
all accounts payable, warrants and options and represents that same is wholly
accurate and complete in all material respects.
ARTICLE X
CONTINUATION AND SURVIVAL OF REPRESENTATION,
WARRANTIES AND COVENANTS
All representations, warranties and covenants made in this Agreement shall
continue to be true and correct at and as of the Closing Date and shall survive
the Closing and the consummation of the transactions contemplated by this
Agreement for two years from he Closing Date hereof unless otherwise expressly
provided herein.
14
ARTICLE XI
CONDITIONS PRECEDENT TO THE OBLIGATION OF COMPANY
The obligation of Company under this Agreement are subject to the satisfaction
of the following conditions on or before the Closing Date.
11.0 1. Accuracy of Representations and Warranties. The representations and
warranties of Mighty Xxxx under Section VII hereof, and Mighty Xxxx Shareholders
under paragraph 6 hereof, herein contained shall have been true and correct in
all material respects when made, and, in addition, shall be true and correct in
all material respects on and as of the Closing Date with the same force and
effect as though made on the Closing Date.
11.02. Performance of Agreements Mighty Xxxx and Mighty Xxxx Shareholders shall
have in all material respects performed all obligations, agreements, covenants
and conditions contained in this Agreement to be performed and complied with by
them on or prior to the Closing Date.
11.03. Corporate Approvals. All necessary corporate action on the part of the
directors and holders of Mighty Xxxx Securities approving the transactions
contemplated by this Agreement shall have been taken.
11.04. Opinion of Counsel to Mighty Xxxx receini unse y Xxxx. Company sive an op
on of co to Mighty Xxxx, to the effect that:
(a) Mighty Xxxx is a corporation duly organized, validly existing and in good
standing under the laws of the state of Mississippi and has all requisite
corporate power under the laws of its jurisdiction of incorporation to carry on
its business as then being conducted and to consummate the transactions
contemplated hereby.
(b) All necessary corporate proceedings of the Board of Directors of Mighty Xxxx
and holders of Mighty Xxxx Securities to authorize the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly taken;
(c) This Agreement has been duly authorized, executed and delivered by Mighty
Xxxx and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms except as the enforcement thereof may be
limited by bankruptcy, insolvency and other similar laws relating to or
affecting the enforcement of creditors' rights generally, and except for
established equitable defenses;
(d) Such counsel (who need not make inquiry of others for such purpose) knows of
no actions, suits or proceedings pending or threatened against or affecting
Mighty Xxxx which would result in a breach of the representations and warranties
set forth in this Agreement, except as disclosed herein;
(e)The Mighty Xxxx Securities to be delivered to Company on the Closing Date
in accordance with the terms of this Agreement, shall vest in Company all right,
title and interest in 100% of the then issued and outstanding shares of Mighty
Xxxx Securities and said shares are duly and validly issued, fully paid and
non-assessable.
(f) Satisfactory to Counsel. All proceedings taken by Mighty Xxxx and all
instruments executed and delivered by Mighty Xxxx on or prior to the Closing
Date in connection with the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to counsel for Company.
15
(g) Absence of Prohibitions. No court order prohibiting the acquisition by
Company of the Mighty Xxxx Securities set forth herein shall be in effect in any
litigation described in Exhibit hereto as of the Closing Date.
ARTICLE XII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF MIGHTY XXXX
AND MIGHTY XXXX SHAREHOLDERS
The obligations of Mighty Xxxx and Mighty Xxxx Shareholders under this Agreement
are subject to the satisfaction of the following conditions on or before the
Closing Date;
12.0 1. Accuracy of Representations and Warranties. The representations and
warranties of Company and Principals herein contained shall have been true and
correct in all respects when made, and in addition, shall be true and correct in
all respects on and as of the Closing Date with the same force and effect as
though made on the Closing Date.
12.02. Performance and Agreements. Company shall have performed all obligations
and agreements and complied with all covenants and conditions contained in this
Agreement to be performed and complied with by it on or prior to the Closing
Date.
12.03. Corporate Approval. All necessary corporate action on the part of the
Board of Directors and Shareholders of Company approving the transactions
contemplated by this Agreement shall have been taken.
12.04. Cash of Company As of the time of the Closing, the Company shall have
cash and/or cash equivalents of not less than $ in excess of all liabilities
(accrued, contingent or otherwise) of Company at that time excepting for legal
and/or accounting expenses relating to the transactions contemplated herein and
in Section VIII hereof.
12.05. Opinion of Counsel to Company and Principals. Mighty Xxxx and Mighty Xxxx
Shareholders shall have received an opinion of Xxxxxxx Xxxxxx Esq., counsel to
Company and Principals, to the effect that:
(a) Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado, and has all requisite power
under the laws of its state of incorporation to carry on its business as then
being conducted and to consummate the transactions contemplated hereby;
(b) All necessary corporate proceedings of the Board of Directors and
Shareholders and Principals of Company to authorize the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly and validly taken;
(c) This Agreement has been duly authorized, executed and delivered by Company
and Principals and constitutes its legal and valid binding obligation of Company
and Principals, enforceable against them in accordance with its terms, except as
the enforcement may be limited by bankruptcy, insolvency and other similar laws
relating to or affecting the enforcement of creditors' rights, generally;
(d) Such counsel (who need not make inquiry of others for such purpose) knows of
no actions, suits or proceedings pending or threatened against or affecting
Company or Principals which would result in a breach of the representations and
warranties set forth in a breach of the representations and warranties set forth
in this Agreement, except as disclosed herein;
16
(e) The shares of Company Stock to be issued to the Mighty Xxxx Shareholders on
the Closing Date in accordance with this Agreement shall vest in each of them
all right, title and interest in and to said shares and said shares when issued
shall be duly and validly issued, fully paid and non-assessable; and
(f) Company has the legal right to consummate the transactions enumerated in
this Agreement subject to and contingent upon the timely obtaining of necessary
Company stockholder approval in ACCORDANCE WITH THE LAW OF THE STATE OF
Colorado, which requires approval 51% of the holders of no less than of all
outstanding shares entitled to vote thereon.
12.06. Proceedings Satisfactory to Counsel. All proceedings taken by Company and
all instruments executed and delivered by Company on or prior to the Closing
Date in connection with the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to counsel for Mighty Xxxx.
12.07. Directors and Officers. Company and Principals shall cause all of
Company's Directors and Officers to remain as is until replaced as a result of a
Special Meeting of Company's Stockholders. Each of such officers and directors
shall execute written resignations, each resigning from their respective
positions with Company with such resignations to be tendered at closing and to
be deemed effective immediately upon acceptance by Mighty Xxxx.
12.08. No Obligations, etc. The Mighty Xxxx Shareholders shall have received
documentation establishing to their reasonable satisfaction and that of their
counsel that Company has no further obligations in respect of prior dealings
with anyone or any firm except as disclosed herein and/or in Company's
Information Statement, if any.
ARTICLE XIII
DELIVERIES TO COMPANY ON THE CLOSING DATE
On the Closing Date, Mighty Xxxx and Mighty Xxxx Shareholders shall deliver to
Company the following:
13.01. Two certificates (i) one of which is executed by the President of Mighty
Xxxx confirming that the representations and warranties made pursuant to Section
VIII of this Agreement, and (ii) the second of which is executed by Mighty Xxxx
Shareholders confirming that the representations and warranties made pursuant to
section 10 of this Agreement, are true and correct in all material respects when
first made and on the Closing Date.
13.02. Certified copies of resolutions duly adopted by the Board of Directors of
Mighty Xxxx authorizing the execution, delivery and performance of this
Agreement and the Consummation of the transactions contemplated hereby.
13.03. Good Standing Certificate or its equivalent issued by the appropriate
jurisdiction of incorporation authorities and dated on or before June 21, 1999.
13.04. Opinion of counsel to Mighty Xxxx in the form provided in Section.
13.05. Investment letters executed by all recipients of Company Stock in the
form of Exhibit D attached hereto.
13.06. Certificates for not less than all of the Mighty Xxxx Securities in form
satisfactory for transfer.
17
13.07. Resignations of the present officers and directors of Company, and such
other documents as counsel of MIGHTY XXXX shall reasonably request in writing.
13.08. Investment Letter executed by Company in the form of Exhibit attached
hereto.
ARTICLE XIV
DELIVERIES, TO MIGHTY XXXX ON THE CLOSING DATE
On the Closing Date, Company shall deliver to Mighty Xxxx the following:
14.01. Certificate executed by the President and Principals of Company
confirming that the representations and warranties made pursuant to the
Agreement are true and correct when first made and on the Closing date and
confirming compliance with the provisions of Section hereof
14.02. Certified copies of resolutions duly adopted by the Board of Directors
and Shareholders of Company authorizing the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby.
14.03. Good Standing Certificates issued by the Secretary of State of the State
of Colorado and dated on or before June 21, 1999.
14.04. Opinion of special counsel of Company in the form provided in Section.
14.05. Stock certificates evidencing ownership of Company Stock registered in
the names of the holders of Mighty Xxxx Securities delivering their shares to
Company, issued pursuant to Section 2 hereof.
ARTICLE XV
CLOSING
The parties hereto agree that the closing hereunder (Closing) and the Closing
Date hereunder shall be held on or before July 1, 1999 unless the parties shall
otherwise unanimously agree in writing to a later date. In the event this
transaction has not closed by July 1, 1999, it may be abandoned by either party
pursuant to Section XVIII hereof.
ARTICLE XVI
REMEDIES FOR BREACH OF THIS AGREEMENT
16.01. Investigations-, Survival of Representations and Warranties. The
respective representations and warranties of the Company on the one hand, and
MIGHTY XXXX and the Stockholders on the other, contained herein or in any
certificates or other documents delivered prior to or at the Closing shall not
be deemed waived or otherwise affected by any investigation make by any party
hereto. Each and every such representation and warranty shall survive the
Closing hereof (even if the party had reason to know of any misrepresentation or
breach of warranty at the time of Closing) and shall continue in full force and
effect for a period of three years thereafter (subject to any statutes of
limitations).
16.02. Indemnification.
(a) Indemnification by the Stockholders. The stockholders shall indemnify and
hold harmless the Company in respect of any and all claims, losses, damages,
liabilities and expenses (including, without limitation, settlement
18
costs and any legal, accounting or other expenses for investigating or defending
any actions or threatened actions) reasonably incurred by MIGHTY XXXX in
connection with each and all of the following:
(i) any breach of any representation or warranty made by the Company and/or the
Stockholders in this agreement;
(ii) the breach of any covenant, agreement or obligation of the Company
contained in this agreement or any other instrument contemplated by this
Agreement; and
(iii) any misrepresentation contained in any statement or certificate furnished
by the Company pursuant to this Agreement.
(b) Indemnification by MIGHTY XXXX and the Stockholders MIGHTY XXXX and the
Stockholders shall indemnify and hold harmless the Company in respect of any and
all claims, losses, damages, liabilities and expenses (including, without
limitation, settlement costs and any legal and accounting or other expenses for
investigating or defending any actions or threatened actions) reasonably
incurred by the Company, in connection with each and all of the following:
(i) any breach of any representation or warranty made by MIGHTY XXXX and/or the
Stockholders in this Agreement;
(ii) the breach of any covenant, agreement or obligation of MIGHTY XXXX and/or
the Stockholders contained in this Agreement or any other instrument
contemplated by this Agreement: and
(iii) any misrepresentation contained in any statement or certificate furnished
by MIGHTY XXXX and/or the stockholders pursuant to this Agreement.
(c) Claims for Indemnification. Whenever any claim shall arise for
indemnification hereunder, the party entitled to indemnification (the
"indemnified party") shall promptly notify the other party (the" indemnifying
party") of the claim and, when known, the facts constituting the basis for such
claim. In the event of any claim by a third party the notice to the indemnifying
party shall specify, if known, a reasonable estimate of the amount of the
liability arising therefrom. The indemnified party shall not settle or
compromise any claim by the third party without the prior written consent of the
indemnifying party (which shall not be unreasonably withheld) unless suit shall
have been instituted against it and the indemnifying party shall not have taken
control of such suit in accordance with subsection (d), below.
(d) Defense by Indemnifying Party In connection with any claim by a third party
giving rise to indemnity hereunder, the indemnifying party at its sole cost and
expense may, upon written notice to the indemnified party, assume the defense of
such claim if it acknowledges to the indemnified party in writing its
obligations to indemnify the indemnified party with respect to all elements of
such a claim. The indemnified party shall be entitled to participate in (but not
control) the defense of any such action, with its counsel and at its own
expense. If the indemnifying party does not assume the defense of any such claim
or litigation resulting therefrom, (a) the indemnified party may defend against
such claim ro litigation, in such manner as it may deem appropriate, including
settling such claim or litigation, after giving notice of the same to the
indemnifying party, on such terms as the indemnified party may deem appropriate,
and (b) the indemnifying party shall be entitled to participate in (but not
control) the defense of such action, with its counsel and at its own expense.
19
(e) Claims Subject to this Article. All claims by any party for any losses,
damages, liabilities and expenses reasonably incurred by such party hereto shall
be subject to the provision of this Article XVI.
ARTICLE XVII
WAIVER, MODIFICATION ABANDONMENT
17.01. Waivers. The failure of Company or the Principals to comply with any of
their obligations, agreements or conditions as set forth herein may be waived
expressly in writing by MIGHTY XXXX, by action of its Board of Directors without
the requirement of a vote of holders of MIGHTY XXXX Securities. The failure of
MIGHTY XXXX and/or the MIGHTY XXXX Shareholders to comply with any of their
obligations, agreements or conditions as set forth herein may be waived
expressly in writing by Company, by action of its Board of Directors, without
the requirement of a vote of Company Shareholders.
17.02. Modification. This Agreement may be modified (only in writing) at any
time in any respect by the unanimous consent of all of the parties hereto.
17.03. Abandonment. The transactions contemplated by this Agreement may be
abandoned on or before the Closing Date, notwithstanding approval of this
Agreement by the shareholders of any party but only:
(a) By the mutual agreement of the respective Boards of Directors of Company and
MIGHTY XXXX;
(b) By the Board of Directors of Company if any of the conditions provided in
Section or Section shall not have been satisfied, complied with or performed in
any material respect, and the Board of Directors of Company shall not have
waived in writing such failure of satisfaction, non-compliance or
non-performance; or
(a) By the Board of Directors of MIGHTY XXXX, if any of the conditions provided
in Section or Section shall not have been satisfied, complied with or performed
in any material respect, and the Board of Directors of MIGHTY XXXX shall not
have waived in writing such failure of satisfaction, non-compliance or
non-performance.
17.04. Effect of Abandonment. If the transactions contemplated by this Agreement
are abandoned as provided for in Section 17 hereof, (i) this agreement shall
forthwith become wholly void and shall have no effect without liability to any
party to this Agreement (except as heretofore indicated in paragraph (c) above)
or to the directors, officers, representatives and agents of any such parties
and (ii) each party shall pay its own fees and expenses incident to the
negotiation, preparation, and execution of this Agreement and the obtaining of
the necessary approvals thereof, including fees and expenses of its counsel,
accountants, and other experts.
ARTICLE XVIII
EXECUTION
18.01. Execution. This Agreement shall become binding legally effective when it
has been executed by Company, the Principals, MIGHTY XXXX and MIGHTY XXXX
Shareholders.
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ARTICLE XIX
MISCELLANEOUS.
19.01. Finders. Except as may be specifically set forth herein or in Exhibit
hereto, the parties acknowledge that there are no persons entitled to receive
any finder's fee, brokerage or similar commission or fee in connection with the
transactions contemplated by this Agreement and each party hereto indemnifies
and holds the other parties harmless against any claim for any such finders fee
based on the alleged retention of a finder.
19.02. Controlling Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York notwithstanding any New York
or other conflict-of-law provisions to the contrary.
19.03. Notices. All notices, requests, demands and other communications required
or permitted under this Agreement shall be in writing and shall be deemed to
have been duly given, made and, received when delivered against receipt or when
deposited in the United States mails, first class, postage prepaid, addressed as
set forth below:
(a) If to Company:
Oxford Financial Holdings, Ltd.
0000 Xxxxxxx Xxxxxx Xxxxx 0000
Xxxxx Xxxxx, Xxxxxxx 00000
Attn.: Xxxx Xxxxxxxx
with a copy, given in the manner prescribed above to:
Xxxxxx X. XxXxxxx, Esq.
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
(b) if to MIGHTY XXXX and MIGHTY XXXX Shareholders:
MIGHTY XXXX USA, LTD.
X.X. Xxx 000
000 Xxxxxxx 000 Xxxxx
Xxx, XXX 00000
Attn: Mr. Xxxxxx Xxxxxxxxx, CFO
With a copy, given in the manner prescribed above to:
Xxxxxxx X. Xxxxxxx, Esq.
X.X. Xxx 0000
Xxxxxxx, XX 00000
Any party may alter the address to which communications are to be sent by giving
written notice of such change of address by conformity with the provisions of
this paragraph of the giving of notice.
19.04. Binding Nature of Agreements, No Assignments. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, and their
respective successors and assigns, except that no party may assign or transfer
its rights or obligations under this Agreement without the prior written consent
of the other parties hereto.
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19.05. Entire Agreement, Amendment. This Agreement and Addendums hereto contains
the entire understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. This agreement may not be modified or amended other
than by an agreement in writing.
19.06. Further Assurances. At any time, and from time to time, after the Closing
Date, each party will execute such additional instruments and take such actions
as may be reasonably requested by any other party to carry out the intended
purposes of this Agreement.
19-07. Counterparts. This agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
19.08. Stockholders undertaking those persons and/or firms who have executed
this Agreement (other that MIGHTY XXXX and MIGHTY XXXX Shareholders) hereby
irrevocably agree to vote all shares owned by them in Company in favor of the
proposed acquisition..
19.09. Publicity. Neither the Company nor MIGHTY XXXX shall make issue, or cause
to be made or issued, any announcement or written statement concerning this
Agreement provision of this Agreement is so broad as to be unenforceable, such
provision shall be construed to be only so broad as is enforceable.
19.10 Incorporation of Schedules and Exhibits. The Schedules and Exhibits
identified in this Agreement are incorporated herein by reference and made a
part hereof.
19.11. Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption shall arise favoring or
disfavoring any party by virtue of the authorship of any of the deemed to also
to refer to all the rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean including without
limitation. The parties intend that each representation, warranty or covenant
contained herein shall have independent significance. If any party has breached
any representation, warranty or covenant herein in any respect, the fact that
there exists another representation, warranty or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty or covenant.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
OXFORD FINANCIAL HOLDINGS, LTD.
By /s/ Xxxx Xxxxxxxx
--------------------------------
Xxxx Xxxxxxxx, President
MIGHTY XXXX USA, LTD.
By /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, Chairman & CEO
By /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxx, Vice Chairman & CFO
MIGHTY XXXX SHAREHOLDERS:
By /s/ Xxxxxxx X.
--------------------------------
Xxxxxxx X.
By
--------------------------------
By /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
