EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the "Agreement")
is entered into effective as of this 3rd day of August, 1999, by and among
Conserve, Inc., a Delaware corporation (hereinafter "Conserve"); Xxxxxxx X.
Xxxxxxxxx, the sole officer and director of Conserve (hereinafter "Southwick");
New Mexico Software, Inc., a New Mexico corporation (hereinafter "NMS"), and the
owners of all the outstanding shares of common stock of NMS (hereinafter the
"NMS Stockholders").
RECITALS:
WHEREAS, the NMS Stockholders own all of the issued and outstanding
common stock of NMS which comprises 100,000 shares (the "NMS Common Stock").
Conserve desires to acquire the NMS Common Stock solely in exchange for voting
common stock of Conserve, making NMS a wholly-owned subsidiary of Conserve; and
WHEREAS, the NMS Stockholders (as set forth on the attached Exhibit "A")
desire to acquire voting common stock of Conserve in exchange for the NMS Common
Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other
good and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Plan of Reorganization. It is hereby agreed that all of the
NMS Common Stock shall be acquired by Conserve in exchange solely for
Conserve common voting stock (the "Conserve Shares"). It is the intention of
the parties hereto that all of the issued and outstanding shares of capital
stock of NMS shall be acquired by Conserve in exchange solely for Conserve
common voting stock and that this entire transaction qualify as a corporate
reorganization under Section 368(a)(1)(B) and/or Section 351 of the Internal
Revenue Code of 1986, as amended, and related or other applicable sections
thereunder.
2. Exchange of Shares. Conserve and NMS Stockholders agree that
on the Closing Date or at the Closing as hereinafter defined, the NMS Common
Stock shall be delivered to Conserve in exchange for the Conserve Shares,
after giving effect to a 1.5 to 1 reverse stock split (the "Conserve Reverse
Stock Split") as to all presently outstanding shares of Conserve common
stock, as follows:
(a) At Closing, Conserve shall, subject to the conditions set forth
herein, issue an aggregate of 11,880,000 shares of Conserve common stock
(after giving effect to the Conserve Reverse Stock Split) for immediate
delivery to the NMS Stockholders in exchange for the Conserve Shares.
(b) Each NMS Stockholder shall execute this Agreement or a written
consent to the exchange of their NMS Common Stock for Conserve Shares.
(c) Unless otherwise agreed by Conserve and NMS, this transaction
shall close only in the event Conserve is able to acquire at least 80% of the
outstanding NMS Common Stock; however, it is the intent of the parties to
have Conserve acquire all of the NMS Common Stock.
3. Pre-Closing Events. The Closing is subject to the completion
of the following:
(a) Conserve shall have authorized 50,000,000 shares of $.001 par
value common stock and 500,000 shares of $.001 par value preferred stock.
The preferred stock shall be subject to issuance in such series and with such
rights, preferences and designations as determined in the sole discretion of
the board of directors.
(b) Xxxx Xxxxx shall have contributed 8,587,948 shares of Conserve
Common Stock to Conserve for cancellation, leaving 7,999,999 shares issued
and outstanding prior to the Conserve Reverse Stock Split.
(c) Conserve shall effectuate the Conserve Reverse Stock Split at
or about the time of Closing, and shall have 5,333,333 shares of its common
stock issued and outstanding and no other shares of capital stock issued or
outstanding not taking into effect the shares to be issued under this
Agreement.
(d) Conserve shall demonstrate to the reasonable satisfaction of
NMS that it has no material assets and no liabilities contingent or fixed
other than the proceeds of the Conserve Financing as described herein.
4. Exchange of Securities. As of the Closing Date each of the
following shall occur:
(a) All shares of NMS Common Stock issued and outstanding
immediately prior to the Closing Date shall be exchanged for the Conserve
Shares (up to an aggregate amount of 11,880,000 Conserve Shares to be
delivered at Closing). All such outstanding shares of NMS Common Stock shall
be deemed, after Closing, to be owned by Conserve. The holders of such
certificates previously evidencing shares of NMS Common Stock outstanding
immediately prior to the Closing Date shall cease to have any rights with
respect to such shares of NMS Common Stock except as otherwise provided
herein or by law;
(b) Any shares of NMS Common Stock held in the treasury of NMS
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
(c) The 5,333,333 shares of Conserve common stock previously issued
and outstanding prior to the Closing, after giving effect to the Conserve
Reverse Split, will remain outstanding.
5. Other Events Occurring at Closing. At Closing, the following
shall be accomplished:
(a) Conserve shall file an amendment to its Certificate of
Incorporation with the Secretary of State of the State of Delaware in
substantially the form attached hereto as Exhibit "B" effecting an amendment
to its Certificate of Incorporation to reflect a name change to a new name as
selected by NMS as set forth in the attached Exhibit "B".
(b) The resignation of the existing Conserve officer and director
and appointment of new officers and directors as directed by NMS.
(c) Conserve shall have completed a private offering under
Regulation D, Rule 506, as promulgated by the Securities and Exchange
Commission ("SEC") under the Securities Act of 1933, as amended, of 2,000,000
shares of its common stock at $.75 per share. The gross proceeds of this
offering (the "Conserve Financing") shall be $1,500,000, which amount, less
agreed upon costs, shall be delivered to the control of new management of
Conserve at Closing in good funds or shall be represented by the conversion
of previous loans to NMS arranged for by Conserve. The Conserve Financing
shall have been completed in compliance with all applicable state and federal
securities laws and the securities sold shall be delivered at Closing to the
investors in the Conserve Financing. Persons who have made bridge loans to
NMS pursuant to arrangements made by Conserve, shall be given the opportunity
to convert the principal of said loans to the purchase of shares in the
private offering prior to Closing upon the same terms as other investors in
the private offering.
(d) Conserve shall adopt a Stock Option Plan at Closing to include
up to 3,000,000 shares of its common stock. The Plan shall include
"incentive" stock options under Section 422 of the Internal Revenue Code of
1986, as amended and other options and similar rights. Conserve shall grant
options under said plan to employees and others, at Closing, exercisable at
$.75 per share, as designated by NMS subject to the reasonable approval of
Conserve.
(e) Conserve shall announce the declaration of a distribution of
Series A Warrants to the shareholders of record as of a date to be announced
but which shall be as of a date prior to closing. The Series A Warrants
shall be distributed on the basis of one Series A Warrant for each 5.333
shares of post-split common stock held by each shareholder of record. There
shall be 1,000,000 Series A Warrants distributed, subject to the terms and
conditions set forth in the attached Exhibit "D".
6. Delivery of Shares. On or as soon as practicable after the
Closing Date, NMS will use its best efforts to cause the NMS Stockholders to
surrender certificates for cancellation representing their shares of NMS
Common Stock, against delivery of certificates representing the Conserve
Shares for which the shares of NMS Common Stock are to be exchanged at
Closing.
7. Representations of NMS Stockholders. Each NMS Stockholder
hereby represents and warrants each only as to its own NMS Common Stock,
effective this date and the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the NMS Common Stock
is free from claims, liens, or other encumbrances, and at the Closing Date
said NMS Stockholder will have good title and the unqualified right to
transfer and dispose of such NMS Common Stock.
(b) Said NMS Stockholder is the sole owner of the issued and
outstanding NMS Common Stock as set forth in Exhibit "A";
(c) Said NMS Stockholder has no present intent to sell or dispose
of the Conserve Shares and is not under a binding obligation, formal
commitment, or existing plan to sell or otherwise dispose of the Conserve
Shares.
8. Representations of NMS. NMS hereby represents and warrants as
follows, which warranties and representations shall also be true as of the
Closing Date:
(a) Except as noted on Exhibit "A", the NMS Stockholders listed on
the attached Exhibit "A" are the sole owners of record and beneficially of
the issued and outstanding common stock of NMS.
(b) NMS has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the NMS
Financial Statements or in Exhibit "A", attached hereto.
(c) The unaudited financial statements as of and for the period
ended March 31, 1999, which have been delivered to Conserve (hereinafter
referred to as the "NMS Financial Statements" are complete and accurate in
all material respects and fairly present the financial condition of NMS as of
the date thereof and the results of its operations for the period covered.
There are no material liabilities or obligations, either fixed or contingent,
not disclosed in the NMS Financial Statements or notes thereto which are
required to be disclosed therein; NMS has no contracts or obligations in the
ordinary course of business which constitute liens or other liabilities which
materially alter the financial condition of NMS as reflected in the NMS
Financial Statements. NMS has good title to all assets shown on the NMS
Financial Statements subject only to dispositions and other transactions in
the ordinary course of business, the disclosures set forth therein and liens
and encumbrances of record. The NMS Financial Statements have been prepared
in accordance with generally accepted accounting principles consistently
applied (except as may be indicated therein or in the notes thereto).
(d) Since the date of the NMS Financial Statements, there have not
been any material adverse changes in the financial position of NMS except
changes arising in the ordinary course of business, which changes will in no
event materially and adversely affect the financial position of NMS.
(e) NMS is not a party to any material pending litigation or, to
its best knowledge, any governmental investigation or proceeding, not
reflected in the NMS Financial Statements, and to its best knowledge, no
material litigation, claims, assessments or any governmental proceedings are
threatened against NMS.
(f) NMS is in good standing in its jurisdiction of incorporation,
and is in good standing and duly qualified to do business in each
jurisdiction where required to be so qualified except where the failure to so
qualify would have no material negative impact on NMS.
(g) NMS has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof)
due or required to be filed and has (or will have) paid or made adequate
provisions for all taxes or assessments which have become due as of the
Closing Date.
(h) NMS has not materially breached any material agreement to which
it is a party. NMS has previously given Conserve copies or access thereto of
all material contracts, commitments and/or agreements to which NMS is a party
including all relationships or dealings with related parties or affiliates.
(i) NMS has no subsidiary corporations except as described in
writing to Conserve.
(j) NMS has made all material corporate financial records, minute
books, and other corporate documents and records available for review to
present management of Conserve prior to the Closing Date, during reasonable
business hours and on reasonable notice.
(k) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which NMS is a party and has
been duly authorized by all appropriate and necessary corporate action under
New Mexico of other applicable law and NMS, to the extent required, has
obtained all necessary approvals or consents required by any agreement to
which NMS is a party.
(l) All disclosure information regarding NMS which is to be set
forth in disclosure documents of Conserve or otherwise delivered to Conserve
by NMS for use in connection with the transaction (the "Acquisition")
described herein is true, complete and accurate in all material respects.
9. Representations of Conserve and Southwick. Conserve, and
Southwick to the best of his knowledge, hereby jointly and severally
represent and warrant as follows, each of which representations and
warranties shall continue to be true as of the Closing Date:
(a) As of the Closing Date, the Conserve Shares, to be issued and
delivered to the NMS Stockholders hereunder will, when so issued and
delivered, constitute, duly authorized, validly and legally issued shares of
Conserve common stock, fully-paid and nonassessable. Conserve shall have
completed its reverse stock split wherein each holder of Conserve Shares
shall have received one share of the Conserve Shares for each three Conserve
Shares previously held. The total number of Conserve Shares outstanding shall
be 5,333,333 without giving effect to shares issued in the Conserve
Financing. No shares of Conserve's preferred stock, $0.001 par value, to be
authorized at Closing, shall be outstanding.
(b) At Closing, all of the issued and outstanding common stock of
Conserve, including shares issued in the Conserve Financing, shall be duly
authorized, validly issued, fully-paid and nonassessable and shall have been
issued in compliance with all applicable corporate and securities laws.
(c) Conserve has the corporate power to enter into this Agreement
and to perform its obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by the board of directors of Conserve. The execution
and performance of this Agreement will not constitute a material breach of
any agreement, indenture, mortgage, license or other instrument or document
to which Conserve is a party and will not violate any judgment, decree,
order, writ, rule, statute, or regulation applicable to Conserve or its
properties. The execution and performance of this Agreement will not violate
or conflict with any provision of the Certificate of Incorporation or by-laws
of Conserve.
(d) Conserve has delivered to NMS a true and complete copy of its
audited financial statements for the years ended December 31, 1996, 1997, and
1998, (the "Conserve Financial Statements"). The Conserve Financial
Statements are complete, accurate in all material respects and fairly present
the financial condition of Conserve as of the dates thereof and the results
of its operations for the periods then ended. There are no material
liabilities or obligations either fixed or contingent not reflected therein.
The Conserve Financial Statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
(except as may be indicated therein or in the notes thereto).
(e) Since December 31, 1998, there have not been any material
adverse changes in the financial condition of Conserve except with regard to
disbursements to pay reasonable and ordinary expenses in connection with
maintaining its corporate status and pursuing the matters contemplated in
this Agreement. Prior to Closing, all accounts payable and other liabilities
of Conserve shall be paid and satisfied in full and Conserve shall have no
liabilities either contingent or fixed.
(f) Neither Southwick nor Conserve is a party to or the subject of any
pending litigation, claims, or governmental investigation or proceeding not
reflected in the Conserve Financial Statements or otherwise disclosed herein,
and there are no lawsuits, claims, assessments, investigations, or similar
matters, to the best knowledge of Southwick, threatened or contemplated
against or affecting Conserve, its management or its properties or Southwick.
(g) Conserve is duly organized, validly existing and in good
standing under the laws of the State of Delaware; has the corporate power to
own its property and to carry on its business as now being conducted and is
duly qualified to do business in any jurisdiction where so required except
where the failure to so qualify would have no material negative impact on it.
(h) Conserve has filed all federal, state, county and local income,
excise, property and other tax, governmental and/or related returns, forms,
or reports, which are due or required to be filed by it prior to the date
hereof, except where the failure to do so would have no material
adverse impact on Conserve, and has paid or made adequate provision in the
Conserve Financial Statements for the payment of all taxes, fees, or
assessments which have or may become due pursuant to such returns or pursuant
to any assessments received. Conserve is not delinquent or obligated for any
tax, penalty, interest, delinquency or charge.
(i) There are no existing options, calls, warrants, preemptive
rights, registration rights or commitments of any character relating to the
issued or unissued capital stock or other securities of Conserve, except as
contemplated in this Agreement.
(j) The corporate financial records, minute books, and other
documents and records of Conserve have been made available to NMS prior to
the Closing and shall be delivered to new management of Conserve at Closing.
(k) Conserve has not breached, nor is there any pending, or to the
knowledge of management, any threatened claim that Conserve has breached, any
of the terms or conditions of any agreements, contracts or commitments to
which it is a party or by which it or its assets are is bound. The execution
and performance hereof will not violate any provisions of applicable law or
any agreement to which Conserve is subject. Conserve hereby represents that
it has no business operations or material assets and it is not a party to any
material contract or commitment other than appointment documents with its
transfer agent, and that it has disclosed to NMS all relationships or
dealings with related parties or affiliates.
(l) Conserve common stock is currently approved for quotation on
the OTC Bulletin Board under the symbol "CNSR" and there are no stop orders
in effect with respect thereto and Conserve has made all filings currently
required to maintain its listing.
(m) All information regarding Conserve which has been provided to
NMS or otherwise disclosed in connection with the transactions contemplated
herein, is true, complete and accurate in all material respects. Conserve
and Southwick specifically disclaim any responsibility regarding disclosures
as to NMS, its business or its financial condition.
10. Closing. The Closing of the transactions contemplated herein
shall take place on such date (the "Closing") as mutually determined by the
parties hereto when all conditions precedent have been met and all required
documents have been delivered, which Closing is expected to take place on or
about August 3, 1999, but no later than August 16, 1999, unless extended by
mutual consent of all parties hereto. The "Closing Date" of the transactions
described herein (the "Acquisition"), shall be that date on which all
conditions set forth herein have been met and the Conserve Shares are issued
in exchange for the NMS Common Stock.
11. Conditions Precedent to the Obligations of NMS. All
obligations of NMS under this Agreement are subject to the fulfillment, prior
to or as of the Closing and/or the Closing Date, as indicated below, of each
of the following conditions:
(a) The representations and warranties by or on behalf of Southwick
and Conserve contained in this Agreement or in any certificate or document
delivered pursuant to the provisions
hereof shall be true in all material respects at and as of the Closing and
Closing Date as though such representations and warranties were made at and
as of such time.
(b) Conserve shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and
delivered all documents required by this Agreement to be performed or
complied with or executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and
shareholders representing a majority interest the outstanding common stock of
Conserve, shall have approved in accordance with applicable state corporation
law the execution and delivery of this Agreement and the consummation of the
transactions contemplated herein.
(d) On or before the Closing Date, Conserve shall have delivered to
NMS certified copies of resolutions of the board of directors and
shareholders of Conserve approving and authorizing the execution, delivery
and performance of this Agreement and authorizing all of the necessary and
proper action to enable Conserve to comply with the terms of this Agreement
including the election of NMS's nominees to the Board of Directors of
Conserve and all matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and
Conserve shall have sufficient shares of its capital stock authorized to
complete the Acquisition.
(f) At Closing, the existing sole officer and director of Conserve
shall have resigned in writing from all positions as director and officer of
Conserve effective upon the election and appointment of the NMS nominees.
(g) At the Closing, all instruments and documents delivered to NMS
and NMS Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for NMS.
(h) The shares of restricted Conserve capital stock to be issued to
NMS Stockholders and in the Conserve Financing at Closing will be validly
issued, nonassessable and fully-paid under Delaware corporation law and will
be issued in compliance with all federal, state and applicable corporation
and securities laws.
(i) NMS and NMS Stockholders shall have received the advice of
their tax advisor, if deemed necessary by them, as to all tax aspects of the
Acquisition.
(j) NMS shall have received all necessary and required approvals
and consents from required parties and its shareholders.
(k) Conserve shall have completed the Conserve Financing.
(l) At the Closing, Conserve shall have delivered to NMS an opinion of
its counsel dated as of the Closing to the effect that:
(i) Conserve is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(ii) This Agreement has been duly authorized, executed and
delivered by Conserve and is a valid and binding obligation of Conserve
enforceable in accordance with its terms;
(iii) Conserve through its board of directors and stockholders
has taken all corporate action necessary for performance under this
Agreement;
(iv) The documents executed and delivered by Conserve to NMS and
NMS Stockholders hereunder are valid and binding in accordance with their
terms and vest in NMS Stockholders, as the case may be, all right, title
and interest in and to the Conserve Shares to be issued pursuant to the
terms hereof, and the Conserve Shares when issued will be duly and
validly issued, fully-paid and nonassessable;
(v) Conserve has the corporate power to execute, deliver and
perform under this Agreement;
(vi) Legal counsel for Conserve is not aware of any liabilities,
claims or lawsuits involving Conserve;
12. Conditions Precedent to the Obligations of Conserve. All
obligations of Conserve under this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions:
(a) The representations and warranties by NMS and NMS Stockholders
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time.
(b) NMS shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing;
(c) NMS shall deliver on behalf of the NMS Stockholders a letter
commonly known as an "Investment Letter," signed by each of said
shareholders, in substantially the form attached hereto as Exhibit "C",
acknowledging that the Conserve Shares are being acquired for investment
purposes.
(d) NMS shall deliver an opinion of its legal counsel to the effect
that:
(i) NMS is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation and
is duly qualified to do business in any jurisdiction where so required
except where the failure to so qualify would have no material adverse
impact on NMS;
(ii) This Agreement has been duly authorized, executed and
delivered by NMS.
(iii) The documents executed and delivered by NMS and NMS
Stockholders to Conserve hereunder are valid and binding in accordance
with their terms and vest in Conserve all right, title and interest in
and to the NMS Common Stock, which stock is duly and validly issued,
fully-paid and nonassessable.
13. Indemnification. For a period of one year from the Closing,
Conserve and Southwick agree to jointly and severally indemnify and hold
harmless NMS, and NMS agrees to indemnify and hold harmless Conserve, at all
times after the date of this Agreement against and in respect of any
liability, damage or deficiency, all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses including attorney's fees incident
to any of the foregoing, resulting from any misrepresentations made by an
indemnifying party to an indemnified party, an indemnifying party's breach of
covenant or warranty or an indemnifying party's nonfulfillment of any
agreement hereunder, or from any misrepresentation in or omission from any
certificate furnished or to be furnished hereunder.
14. Nature and Survival of Representations. All representations,
warranties and covenants made by any party in this Agreement shall survive
the Closing and the consummation of the transactions contemplated hereby for
one year from the Closing. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement and not upon any investigation upon which it might have made or any
representation, warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set
forth herein.
15. Documents at Closing. At the Closing, the following documents
shall be delivered:
(a) NMS will deliver, or will cause to be delivered, to Conserve the
following:
(i) a certificate executed by the President and Secretary of
NMS to the effect that all representations and warranties made by NMS
under this Agreement are true and correct as of the Closing, the same as
though originally given to Conserve on said date;
(ii) a certificate from the jurisdiction of incorporation of NMS
dated at or about the Closing to the effect that NMS is in good standing
under the laws of said jurisdiction;
(iii) Investment Letters in the form attached hereto as Exhibit
"C" executed by each NMS Stockholder;
(iv) such other instruments, documents and certificates, if any,
as are required to be delivered pursuant to the provisions of this
Agreement;
(v) certified copies of resolutions adopted by the shareholders
and directors of NMS authorizing this transaction; and
(vi) all other items, the delivery of which is a condition
precedent to the obligations of Conserve as set forth herein.
(vii) the legal opinion required by Section 12(d) hereof.
(b) Conserve will deliver or cause to be delivered to NMS:
(i) stock certificates representing the Conserve Shares to be
issued as a part of the stock exchange as described herein;
(ii) a certificate of the President of Conserve, to the effect
that all representations and warranties of Conserve made under this
Agreement are true and correct as of the Closing, the same as though
originally given to NMS on said date;
(iii) certified copies of resolutions adopted by Conserve's board
of directors and Conserve's Stockholders authorizing the Acquisition and
all related matters described herein;
(iv) certificate from the jurisdiction of incorporation of
Conserve dated at or about the Closing Date that Conserve is in good
standing under the laws of said state;
(v) opinion of Conserve's counsel as described in Section 11(1)
above;
(vi) good funds representing the net proceeds of the Conserve
Financing;
(vii) resignation of the existing officer and director of
Conserve;
(viii) all corporate and financial records of Conserve; and
(ix) all other items, the delivery of which is a condition
precedent to the obligations of NMS, as set forth in Section 12 hereof.
16. Finder's Fees. Conserve represents and warrants to NMS, and
NMS represents and warrants to Conserve that neither of them, or any party
acting on their behalf, has incurred any liabilities, either express or
implied, to any "broker" of "finder" or similar person in connection with
this Agreement or any of the transactions contemplated hereby other than
arrangements, if any, disclosed to NMS by Conserve to compensate any person
who introduced the parties, which obligation shall be the sole responsibility
of Conserve. In this regard, Conserve, on the one hand, and NMS on the other
hand, will indemnify and hold the other harmless from any claim, loss, cost
or expense whatsoever (including reasonable fees and disbursements of
counsel) from or relating to any such express or implied liability other than
as disclosed herein.
17. Miscellaneous.
(a) Further Assurances. At any time, and from time to time, after
the Closing Date, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to confirm
or perfect title to any property transferred hereunder or otherwise to carry
out the intent and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply
with any of its obligations, agreements or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
(c) Amendment. This Agreement may be amended only in writing as
agreed to by all parties hereto.
(d) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered in person
or sent by prepaid first class registered or certified mail, return receipt
requested.
(e) Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(g) Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Delaware.
(h) Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed
upon or understood in the transaction. There are no oral promises,
conditions, representations, understandings, interpretations or terms of any
kind as conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
(k) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
CONSERVE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
President and Secretary
/s/ Xxxx Xxxxx (as to Section 3(b)) /s/ Xxxxxxx X. Xxxxxxxxx, individually
NEW MEXICO SOFTWARE, INC.
By: By: Xxxxxxx Xxxxxxxx
Secretary President
SHAREHOLDERS OF NEW MEXICO
SOFTWARE, INC.
/s/ Xxxxxxx Xxxxxxxx
