Agreement and Plan of Reorganization
This Agreement and Plan of Reorganization (hereinafter the
"Agreement") is entered into effective as of this October 1,
2003, by and among Xtreme Companies, Inc., a Nevada
corporation (hereinafter "Xtreme"); Xxxxxx Xxxxxxx, a
shareholder of Xtreme (hereinafter "Xxxxxxx"); Rockwell
Power Systems, Inc. a Delaware corporation (hereinafter
"Rockwell"), and the owners of the outstanding shares
of common stock of Rockwell Power Systems, Inc.
(hereinafter the Shareholders of Rockwell").
WHEREAS, the Rockwell Shareholders own all of the
issued and outstanding common stock of Rockwell (the
"Rockwell Common Stock"). Xtreme desires to acquire
the Rockwell Common Stock solely in exchange for
voting common stock of Xtreme, making Rockwell a
wholly-owned subsidiary of Xtreme; and
WHEREAS, the Rockwell Shareholders (as set forth on
Exhibit "A" to be delivered on or before Closing) desire
to acquire voting common stock of Xtreme in exchange
for the Rockwell 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:
1. Plan of Reorganization
It is hereby agreed that the Rockwell Common Stock
shall be acquired by Xtreme in exchange solely for Xtreme
common voting stock (the "Xtreme Shares"). It is the intention
of the parties hereto that all of the issued and outstanding
shares of capital stock of Rockwell shall be acquired by
Xtreme in exchange solely for Xtreme 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
Xtreme and Rockwell Shareholders agree that on the
Closing Date or at the Closing as hereinafter defined,
the Rockwell Common Stock shall be delivered at Closing
to Xtreme in exchange for the Xtreme Shares, after giving
effect to a 100 to 1 reverse stock split (the "Xtreme Reverse
Stock Split") as to all presently outstanding shares of Xtreme
common stock, as follows:
At Closing, Xtreme shall, subject to the conditions
set forth herein, issue an aggregate of 60,000,000
shares of Xtreme common stock (after giving effect to the
Xtreme Reverse Stock Split) for immediate delivery to the
Rockwell Shareholders in exchange for Rockwell Shares.
Each Rockwell Shareholder shall execute this
Agreement or a written consent to the exchange
of their Rockwell Common Stock for Xtreme Shares.
3. Pre-Closing Events
The Closing is subject to the completion of the following:
Xtreme shall have authorized 100,000,000
shares of $0.001 par value common stock and on
or before Closing shall have amended its Articles
of Incorporation to authorize 100,000,000 shares
of $0.001 par value common stock.
Xtreme shall have effectuated the Xtreme
Reverse Stock Split at or about the Closing, and
shall have 356,512.3 shares of its common stock
issued and outstanding and no other shares of capital
stock issued or outstanding.
Xtreme shall demonstrate to the reasonable
satisfaction of Rockwell that it has no material assets
and no liabilities contingent or fixed other than those
disclosed on Exhibit "B" attached hereto.
4. Exchange of Securities
As of the Closing Date each of the following shall occur:
All outstanding shares of Rockwell Common Stock
shall be deemed, after Closing, to be owned by Xtreme.
The holders of such certificates previously evidencing
shares of Rockwell Common Stock outstanding immediately
prior to the Closing Date shall cease to have any rights with
respect to such shares of Rockwell Common Stock except as
otherwise provided herein or by law;
Any shares of Rockwell Common Stock held in the
treasury of Rockwell 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 356,512.3 shares of Xtreme common stock
previously issued and outstanding prior to the
Closing, after giving effect to the Xtreme
Reverse Split, will remain outstanding.
5. Other Events Occurring at Closing
At closing, the following shall be accomplished:
Xtreme shall file an amendment to its Articles
of Incorporation with the Secretary of State of the
State of Nevada in substantially the form attached
hereto as Exhibit "C" effecting an amendment to its
Articles of Incorporation to reflect (1) authorize
100,000,000 shares of common stock, and (2) to put
of record the Xtreme Reverse Stock Split as set forth
in the attached Exhibit "C".
The resignation of the existing Xtreme officers
and directors and appointment of new officers and
directors as directed by Rockwell.
It is recognized by the parties hereto that
Rockwell entered into an agreement, including
all amendments thereto (the "Shogun Agreement")
dated September 06, 2003, with Shogun Investments
Group Ltd., ("Shogun"), wherein Shogun agreed to
identify a public company to be involved in a
"reverse merger" with Rockwell, and that Xtreme
is the public company agreed to by Shogun and
Rockwell. Under said Shogun Agreement, at Closing
of the transactions described herein, Shogun shall retain
50,000 free trading shares of its common stock
(the "Retained Shares") (after given effect to the
Xtreme Reverse Stock Split). The Retained Shares
will be subject to a lock-up agreement as set forth in
Exhibit "I" attached hereto. In addition Shogun shall
receive 1.5% of the totaled outstanding shares
(or 150,000 shares, which ever is greater) of
Xtreme Shares of common stock (after giving
effect to the Xtreme Reverse Stock Split). These
shares are deemed to be covered by the defined term
"Xtreme Shares" as set forth herein for purposes of
all representations and warranties of Xtreme and the
legal opinion given on behalf of Xtreme herein.
Furthermore, Shogun shall receive $25,000 in cash
on the date of the Closing and $25,000 upon acceptance
of a payment plan with the Internal Revenue Service
for the outstanding tax liability.
6. Delivery of Shares
On or as soon as practicable after the Closing Date,
Rockwell will use its best efforts to cause the Rockwell
Shareholders to surrender certificates for cancellation
representing their shares of Rockwell Common Stock,
against delivery of certificates representing the Xtreme
Shares for which the shares of Rockwell Common Stock
are to be exchanged at Closing.
7. Representations of Private Corporation Shareholders
Each Rockwell Shareholder hereby represents and
warrants each only as to its own Rockwell Common
Stock, effective this date and the Closing Date as follows:
Except as may be noted in Exhibit "D", the
Rockwell Common Stock is free from claims, liens,
or other encumbrances, and at the Closing Date said
Rockwell Shareholder will have good title and the
unqualified right to transfer and dispose of such
Rockwell Common Stock,
Said Rockwell Shareholder is the sole owner
of the issued and outstanding Rockwell Common
Stock as set forth in Exhibit "D";
Said Rockwell Shareholder has no present
intent to sell or dispose of the Xtreme Shares and is
not under a binding obligation, formal commitment,
or existing plan to sell or otherwise dispose of the
Xtreme Shares.
8. Representations of Private Corporation
Rockwell hereby represents and warrants as follows,
which warranties and representations shall also be true
as of the Closing Date:
Except as noted on Exhibit "D", the Rockwell
Shareholders listed on the attached Exhibit "D" are
the sole owners of record and beneficially of the
issued and outstanding common stock of Rockwell.
Rockwell has no outstanding or authorized capital
stock, warrants, options or convertible securities other
than as described in the Rockwell Financial Statements
or on Exhibit "E", attached hereto.
The unaudited financial statements for the period ended
August 15, 2003, which have been (or will be prior
dissemination of an Information Statement by Xtreme)
delivered to Xtreme (hereinafter referred to as the
" Rockwell Financial Statements") are complete and
accurate and fairly present the financial condition of
Rockwell as of the dates thereof and the results of its
operations for the periods covered. There are no material
liabilities or obligations, either fixed or contingent, not
disclosed in the Rockwell Financial Statements or in any
exhibit thereto or notes thereto other than contracts or
obligations in the ordinary course of business; and no
such contracts or obligations in the ordinary course of
business constitute liens or other liabilities which materially
alter the financial condition of Rockwell as reflected in the
Rockwell Financial Statements. Rockwell has good title to
all assets shown on the Rockwell Financial Statements
subject only to dispositions and other transactions in the
ordinary course of business, the disclosures set forth herein
and liens and encumbrances of record. The Rockwell
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) and fairly present the financial position of Rockwell
as of the dates thereof and the results of its operations and
changes in financial position for the periods then ended.
Since the date of the Rockwell Financial Statements,
there has not been any material adverse changes in the
financial position of Rockwell except changes arising in
the ordinary course of business, which changes will in
no event materially and adversely affect the financial
position of Rockwell.
Rockwell is not a party to any material pending
litigation or, to its best knowledge, any governmental
investigation or proceeding, not reflected in the
Rockwell Financial Statements, and to its best
knowledge, no material litigation, claims, assessments
or any governmental proceedings are threatened against
Rockwell.
Rockwell 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 Rockwell.
Rockwell has (or, by the Closing Date, will have
flied) 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.
Rockwell has not materially breached any material
agreement to which it is a party. Rockwell has previously
given Xtreme copies or access thereto of all material
contracts, commitments and/or agreements to which
Rockwell is a party including all relationships or dealings
with related parties or affiliates.
Rockwell has no subsidiary corporations except as
described in writing to Xtreme.
Rockwell has made all material corporate financial
records, minute books, and other corporate documents and
records available for review to present management of
Xtreme prior to the Closing Date, during reasonable
business hours and on reasonable notice.
The execution of this Agreement does not materially
violate or breach any material agreement or contract to which
Rockwell is a party and has been duly authorized by all
appropriate and necessary corporate action under the law
of the State of Delaware or other applicable law and Rockwell,
to the extent required, has obtained all necessary approvals or
consents required by any agreement to which Rockwell is a party.
All disclosure information regarding Rockwell which is
to be set forth in disclosure documents of Xtreme or
otherwise delivered to Xtreme by Rockwell, for use in
connection with the transaction (the "Acquisition")
described herein is true, complete and accurate in all
material respects.
9. Representations of Public Corporation and Shareholder
of Public Corporation
Xtreme, and Xxxxxxx to the best of their 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:
As of the Closing Date, the Xtreme Shares, to be
issued and delivered to the Xtreme Shareholders
hereunder will, when so issued and delivered,
constitute, duly authorized, validly and legally
issued shares of Xtreme common stock, fully-paid
and nonassessable. Xtreme shall have completed its
reverse stock split wherein each holder of Xtreme
Shares shall have received one share of the Xtreme
Shares for each 100 Xtreme Shares previously held.
The total number of Xtreme shares of common stock
outstanding shall be 356,512.3. No shares of Xtreme
preferred stock shall be outstanding.
Xtreme has the corporate power to enter into
this Agreement and to perform its respective 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 Xtreme. 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 Xtreme is a party and will not violate any judgment,
decree, order, writ, rule, statute, or regulation applicable to
Xtreme or its properties. The execution and performance of
this Agreement will not violate or conflict with any provision
of the Articles of Incorporation or by-laws of Xtreme.
Xtreme has delivered to Rockwell (or shall deliver
prior to Closing) a true and complete copy of its audited
financial statements for the years ended December 31, 2000,
December 31, 2001, and December 2002 (the " Xtreme
Financial Statements"), The Xtreme Financial Statements
are complete, accurate and fairly present the financial
condition of Xtreme 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 Xtreme 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) and fairly
present the financial position of Xtreme as of the dates thereof
and the results of its operations and changes in financial
position for the periods then ended.
Since August 15, 2003, there have not been any material
adverse changes in the financial condition of Xtreme 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
Xtreme shall be paid and satisfied in full and Xtreme shall
have no liabilities either contingent or fixed.
Xtreme is not a party to or the subject of any pending
litigation, claims, or governmental investigation or proceeding
not reflected in the Xtreme Financial Statements or otherwise
disclosed herein, and there are no lawsuits, claims, assessments,
investigations, or similar matters, to the best knowledge of
Xxxxxxx, threatened or contemplated against or Xtreme, its
management or its properties.
Xtreme is duly organized, validly existing and in good
standing under the laws of the State of Nevada; 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.
Other than the tax liabilities disclosed on Exhibit "F"
attached hereto, Xtreme 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
Xtreme, and has paid or made adequate provision in the Xtreme
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.
Xtreme is not delinquent or obligated for any tax, penalty,
interest, delinquency or charge.
There are no existing options, calls, warrants,
preemptive rights or commitments of any character
relating to the issued or unissued capital stock or other
securities of Xtreme, except as contemplated in this
Agreement.
The corporate financial records, minute books, and
other documents and records of Xtreme have been
made available to Rockwell prior to the Closing and
shall be delivered to new management of Xtreme at Closing.
Xtreme has not breached, nor is there any pending,
or to the knowledge of management, any threatened
claim that Xtreme as 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 Xtreme is subject. Xtreme 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 Rockwell all
relationships or dealings with related parties or affiliates.
(k) Xtreme common stock is currently approved for quotation
on the OTC Bulletin Board under the symbol "XTRE" and
there are no stop orders in effect with respect thereto.
All information regarding Xtreme which has been
provided to Rockwell or otherwise disclosed in connection
with the transactions contemplated herein is true, complete
and accurate in all material respects. Xtreme and Xxxxxxx
specifically disclaim any responsibility regarding disclosures
as Rockwell, 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 October 1, 2003, but no later than
October 15, 2003, 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 Xtreme
Shares are issued in exchange for the Rockwell Common Stock.
11. Conditions Precedent to Obligations of Private Corporation
All obligations of Rockwell 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:
The representations and warranties by or on
behalf of Xxxxxxx and Xtreme 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.
Xtreme 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.
On or before the Closing, the board of directors, and
shareholders representing a majority interest the outstanding
common stock Xtreme, 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.
On or before the Closing Date, Xtreme shall have
delivered to Rockwell certified copies of resolutions of
the board of directors and shareholders of Xtreme
approving and authorizing the execution, delivery and
performance of this Agreement and authorizing all of
the necessary and proper action to enable Xtreme to
comply with the terms of this Agreement including the
election of Rockwell's nominees to the Board of Directors
of Xtreme and all matters outlined herein.
The Acquisition shall be permitted by applicable
law and Xtreme shall have sufficient shares of its capital
stock authorized to complete the Acquisition.
At Closing, the existing sole officer and director
of Xtreme shall have resigned in writing from all
positions as director and officer of Xtreme effective
upon the election and appointment of the Rockwell
nominees.
At the Closing, all instruments and documents
delivered to Rockwell and Rockwell Shareholders pursuant
to the provisions hereof shall be reasonably satisfactory to
legal counsel for Rockwell.
The shares of restricted Xtreme capital stock to be
issued to Rockwell Shareholders at Closing will be validly
issued, nonassessable and fully-paid under Nevada corporation
law and will be issued in compliance with all federal, state
and applicable corporation and securities laws.
Rockwell and Rockwell Shareholders shall have
received the advice of their tax advisor, if deemed necessary
by them, as to all tax aspects of the Acquisition.
Rockwell shall have received all necessary and required
approvals and consents from required parties and its sha
reholders.
At the Closing, Xtreme shall have delivered to Rockwell
an opinion of its counsel dated as of the Closing to the
effect that:
Xtreme is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation;
This Agreement has been duly authorized,
executed and delivered by Xtreme and is a valid
and binding obligation of Xtreme enforceable in accordance
with its terms;
Xtreme through its board of directors and
shareholders has taken all corporate action
necessary for performance under this Agreement;
The documents executed and delivered by
Xtreme to Rockwell and Rockwell Shareholders
hereunder are valid and binding in accordance with
their terms and vest in Rockwell Shareholders, as the
case may be, all right, title and interest in and to the
Xtreme Shares to be issued pursuant to the terms
hereof, and the Xtreme Shares when issued will be
duly and validly issued, fully-paid and nonassessable;
Xtreme has the corporate power to execute, deliver
and perform under this Agreement;
Legal counsel of Xtreme is not aware of any
liabilities, claims or lawsuits involving Xtreme except
those disclosed herein.
12. Conditions Precedent to Obligations of Public Corporation
All obligations of Xtreme under this Agreement are subject to
the fulfillment, prior to or at the Closing, of each of the
following conditions:
The representations and warranties by Rockwell and
Rockwell Shareholders 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.
Rockwell 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;
Rockwell shall deliver on behalf of the Rockwell
Shareholders a letter commonly known as an "Investment
Letter," signed by each of said shareholders, in substantially
the form attached hereto as Exhibit "G", acknowledging that
the Xtreme Shares are being acquired for investment purposes.
Rockwell shall deliver an opinion of its legal counsel
to the effect that:
Rockwell 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 Rockwell;
This Agreement has been duly authorized,
executed and delivered by Rockwell.
The documents executed and delivered by
Rockwell and Rockwell Shareholders to Xtreme
hereunder are valid and binding in accordance with
their terms and vest in Xtreme all right, tide and interest
in and to the Rockwell Common Stock, which stock is
duly and validly issued, fully-paid and nonassessable.
13. Indemnification
For a period of one year from the Closing, Xtreme and
Xxxxxxx agree to jointly and severally indemnify and hold
harmless Rockwell, and Rockwell agrees to indemnify and
hold harmless Xtreme and Xxxxxxx, 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 material
misrepresentations made by an indemnifying party to an
indemnified party, an indemnifying party's breach of covenant
or warranty or an indemnifying party's non-fulfillment of any
agreement hereunder, or from any material 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 parry or any other person other
than as specifically set forth herein.
15. Documents at Closing
At the Closing, the following documents shall be delivered:
15.1 Private Corporation's Deliveries
Rockwell will deliver, or will cause to be delivered, to Xtreme
the following:
A certificate executed by the President and Secretary
of Rockwell to the effect that all representations and
warranties made by Rockwell under this Agreement are true
and correct as of the Closing, the same as though originally
given to Xtreme on said date;
A certificate from the jurisdiction of incorporation of
Rockwell dated at or about the Closing to the effect that
Rockwell is in good standing under the laws of said jurisdiction;
Investment Letters in the form attached hereto as Exhibit
"G" executed by each Rockwell Shareholder;
Such other instruments, documents and certificates,
if any, as are required to be delivered pursuant to the provisions
of this Agreement;
Certified copies of resolutions adopted by the shareholders
and directors of Rockwell authorizing this transaction;
(f) The legal opinion required by Section 12(d) hereof; and
All other items, the delivery of which is a condition
precedent to the obligations of Xtreme as set forth herein.
15.2 Public Corporation's Deliveries
Xtreme will deliver or cause to be delivered to Rockwell:
Stock certificates representing the Xtreme Shares to
be issued as a part of the stock exchange as described herein;
A certificate of the President of Xtreme, to the effect
that all representations and warranties of Xtreme made
under this Agreement are true and correct as of the Closing,
the same as though originally given to Rockwell on said date;
Certified copies of resolutions adopted by Xtreme's board of
directors and Xtreme's Shareholders authorizing the
Acquisition and all related matters described herein;
Certificate from the jurisdiction of incorporation of
Xtreme dated at or about the Closing Date that Xtreme is
in good standing under the laws of said state;
Opinion of Xtreme's counsel as described in Section
11.9 above;
Such other instruments and documents as are required
to be delivered pursuant to the provisions of this Agreement;
(g) Resignation of the existing officer and director of Xtreme;
(h) All corporate and financial records of Xtreme;
Executed copies of settlement and release agreements
from the creditors as set forth in Exhibit "H" attached hereto; and
(j) All other items, the delivery of which is a condition
precedent to the obligations of Rockwell, as set forth in
Section 12 hereof.
16. Finder's Fees
Xtreme, represents and warrants to Rockwell, and Rockwell
represents and warrants to Xtreme 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 the arrangements described
in Section 5.4 hereof. In this regard, Xtreme, on the one hand,
and Rockwell 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
17.1 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.
17.2 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.
17.3 Amendment
This Agreement may be amended only in writing as
agreed to by all parties hereto.
17.4 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.
17.5 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.
17.6 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.
17.7 Governing Law
This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
17.8 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.
17.9 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.
17.10 Time
Time is of the essence.
17.11 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.
Xtreme Companies, Inc.
By: ______________________
Name: ___________________
Title: ____________________
Xxxxxx Xxxxxxx, Individually
By: ______________________
Name: ___________________
Title: ____________________
Rockwell Power Systems, Inc.
By: ______________________
Name: ___________________
Title: ____________________
