EXHIBIT 2.1
ACQUISITION AGREEMENT
between
WOLFPACK CORPORATION,
WOLFPACK SUBSIDIARY CORP.,
AAM INVESTMENT COUNCIL, INC.,
and
XXXXX AND XXXXX XXXXX
January 4, 1999
TABLE OF CONTENTS
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ARTICLE I.................................................................................... 1
SECTION 1.1 Acquisition and Plan of Reorganization................................... 1
SECTION 1.2 Issuance of Shares....................................................... 2
SECTION 1.3 Closing.................................................................. 2
SECTION 1.4 Consummation of Transaction.............................................. 3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
WOLFPACK CORPORATION.................................................................... 3
SECTION 2.1 Organization of Wolfpack................................................. 3
SECTION 2.2 Capitalization of Wolfpack............................................... 3
SECTION 2.3 Character Documents...................................................... 4
SECTION 2.4 Corporate Documents...................................................... 4
SECTION 2.5 Required Authorizations.................................................. 4
SECTION 2.6 Compliance with Law and Government Regulations........................... 4
SECTION 2.7 Litigation............................................................... 4
SECTION 2.8 Authority................................................................ 4
SECTION 2.9 Full Disclosure.......................................................... 5
ARTICLE III
COVENANTS OF WOLFPACK AND SUBSIDIARY.................................................... 5
SECTION 3.1 Conduct Prior to the Closing............................................. 5
SECTION 3.2 Affirmative Covenants.................................................... 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
AAM INVESTMENT, INC. AND XXXXX AND XXXXX XXXXX.......................................... 6
SECTION 4.1 Organization of AAM...................................................... 6
SECTION 4.2 Capitalization of AAM.................................................... 6
SECTION 4.2 Charter Documents........................................................ 6
SECTION 4.3 Tax Returns and Payments................................................. 6
SECTION 4.4 Required Authorizations.................................................. 6
SECTION 4.5 Compliance with Law and Government Regulations........................... 7
SECTION 4.6 Litigation............................................................... 7
SECTION 4.7 Patents, Trade Names and Rights.......................................... 7
SECTION 4.8 Governmental Consent..................................................... 7
SECTION 4.9 Authority................................................................ 7
SECTION 4.10 Ownership of Shares...................................................... 8
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SECTION 4.11 Investment Purpose..................................................... 8
SECTION 4.12 Full Disclosure........................................................ 8
ARTICLE V
COVENANTS OF AAM AND XXXXX AND XXXXX XXXXX........................................... 8
SECTION 5.1 Conduct Prior to the Closing........................................... 8
SECTION 5.2 Affirmative Covenants.................................................. 9
ARTICLE VI
ADDITIONAL AGREEMENTS................................................................ 9
SECTION 6.1 Expenses............................................................... 9
SECTION 6.2 Brokers and Finders.................................................... 9
SECTION 6.3 Necessary Actions...................................................... 9
SECTION 6.4 Confidentiality........................................................ 10
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES............................................. 10
SECTION 7.1 Legal Action........................................................... 10
SECTION 7.2 Absence of Termination................................................. 10
SECTION 7.3 Required Approvals..................................................... 10
SECTION 7.4 "Blue Sky" Compliance.................................................. 10
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF WOLFPACK...................................... 10
SECTION 8.1 Representations and Warranties True at Closing......................... 10
SECTION 8.2 Performance............................................................ 11
SECTION 8.3 Authority.............................................................. 11
SECTION 8.4 Absence of Certain Changes or Events................................... 11
ARTICLE IX
CONDITIONS PRECEDENT OF AAM.......................................................... 11
SECTION 9.1 Representations and Warranties True at Closing......................... 11
SECTION 9.2 Performance............................................................ 11
SECTION 9.3 Authority.............................................................. 11
SECTION 9.4 Absence of Certain Changes or Events................................... 12
ARTICLE X
TERMINATION.......................................................................... 12
SECTION 10.1 Termination............................................................ 12
SECTION 10.2 Effect of Termination.................................................. 13
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ARTICLE XI
MISCELLANEOUS............................................................ 13
SECTION 11.1 Cost and Expenses.......................................... 13
SECTION 11.2 Extension of time: Waivers................................. 13
SECTION 11.3 Notices.................................................... 13
SECTION 11.4 Parties in Interest........................................ 14
SECTION 11.5 Counterparts............................................... 14
SECTION 11.6 Severability............................................... 14
SECTION 11.7 Headings................................................... 14
SECTION 11.8 Survival of Representations and Warranties................. 14
SECTION 11.9 Assignability.............................................. 14
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ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (hereinafter referred to as the "Agreement") is
made and entered into as of January 4, 1999 by and between WOLFPACK CORPORATION,
a Delaware corporation (hereinafter referred to as "Wolfpack"), WOLFPACK
SUBSIDIARY CORP., a Delaware corporation and a wholly-owned subsidiary of
Wolfpack (hereinafter referred to as "Subsidiary"), AAM INVESTMENT COUNCIL,
INC., a Pennsylvania corporation (hereinafter referred to as "AAM"), and XXXXX
AND XXXXX XXXXX, the sole shareholders of AAM.
RECITALS
WHEREAS, Wolfpack and Subsidiary desire that Subsidiary acquires all of the
issued and outstanding shares of AAM voting capital stock in exchange for one
million (1,000,000) shares of authorized but previously unissued Wolfpack voting
common stock, par value One Tenth of a Cent ($.001) per share and pursuant to
the terms and conditions set forth herein and as a tax free exchange pursuant to
Section 351 of the Internal Revenue Code ("IRC");
WHEREAS, Xxxxx and Xxxxx Xxxxx as the sole shareholders of AAM (the
"Shareholders"), desire to exchange all of their shares of AAM capital stock for
shares of Wolfpack common stock in the respective amounts set forth herein and
as a tax free exchange pursuant to Section 351 of the IRC;
WHEREAS, at the closing of the acquisition described herein, AAM will be a
wholly-owned subsidiary of Subsidiary which, in turn, will remain a wholly-owned
subsidiary of Wolfpack;
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the parties hereby
agree as follows:
ARTICLE I
SECTION 1.1 Acquisition and Plan of Reorganization. At the Closing (as
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defined in Section 1.3), Subsidiary shall acquire all of the issued and
outstanding shares of AAM capital stock, in exchange for One Million (1,000,000)
shares of authorized but previously unissued Wolfpack common stock par value
$.001 per share (the "Acquisition"). It is also agreed to by the parties hereto
that by acquiring all of the shares of AAM capital stock, Subsidiary will
acquire all rights, title and interest to all assets and property presently
owned by AAM. Said assets and property may be subject to certain interest,
liens and/or encumbrances. The parties hereto hereby further agree that at the
Closing, as hereinafter defined, AAM shall become a wholly-owned subsidiary of
Subsidiary subject to the conditions and provisions of Section 1.3 hereof.
SECTION 1.2 Issuance of Shares.
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(a) Upon the Closing of this Agreement, Wolfpack shall cause to be issued
and delivered to the Shareholders as the sole shareholder of AAM, stock
certificates representing an aggregate of One Million (1,000,000) shares (the
"Wolfpack Shares") of Wolfpack voting common stock.
(b) The Wolfpack Shares to be issued hereunder shall be authorized but
previously unissued shares of Wolfpack common stock.
(c) All of the Wolfpack Shares to be issued hereunder are deemed
"restricted securities" as defined by Rule 144 of the Securities Act of 1933, as
amended (the "Securities Act"), and the recipient shall represent that they are
acquiring the Wolfpack Shares for investment purposes only and without the
intent to make a further distribution of the Wolfpack Shares. All Wolfpack
Shares to be issued under the terms of this Agreement shall be issued pursuant
to an exemption from the registration requirements of the Securities Act, under
Section 4(2) of the Securities Act and the rules and regulations promulgated
thereunder. Certificates representing the restricted Wolfpack Shares to be
issued hereunder shall bear the following, or similar legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF
SUCH ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION
PROVISIONS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED
TO THE SATISFACTION OF THE COMPANY.
SECTION 1.3 Closing. Within ninety (90) days after the execution of
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this Agreement, Wolfpack shall commence an offering pursuant to Regulation D of
the Securities Act to sell a minimum of 250,000 shares and a maximum of
1,000,000 shares (the "Shares") of Wolfpack common stock, par value $0.001 per
share, at a price of $0.10 per share (the "Offering"). In the event Wolfpack
does not receive subscriptions for a minimum of $25,000.00 (the "Minimum
Amount") pursuant to the Offering within one hundred twenty (120) days from the
date of the Offering, the Offering and this Agreement will be terminated.
In the event Wolfpack receives the Minimum Amount prior to the termination
of the Offering, the parties shall schedule a Closing at a mutually agreeable
time to consummate the Acquisition (the "Closing"). At the Closing:
(a) AAM and the Shareholders shall deliver to Subsidiary all stock
certificates representing 100% of the issued and outstanding shares of AAM
capital stock, so as to make Subsidiary the sole holder thereof, free and clear
of all claims and encumbrances;
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(b) Wolfpack shall deliver to the Shareholders stock certificates
representing an aggregate of One Million (1,000,000) shares of Wolfpack common
stock which certificates shall bear a standard restrictive legend in the form
customarily used with restricted securities and as set forth in Section 1.2(c)
above;
(c) Wolfpack and Subsidiary shall deliver an Officer's Certificate as
described in Sections 9.1 and 9.2 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth herein by
Wolfpack are true and correct as of, or have been fully performed and complied
with by, the Closing Date; and
(d) AAM shall deliver an Officer's Certificate as described in Section 8.1
and 8.2 hereof, dated the Closing Date, that all representations, warranties,
covenants and conditions set forth herein by AAM are true and correct as of, or
have been, or will be fully performed and complied with by the Closing Date;
SECTION 1.4 Consummation of Transaction. If at the time of the Closing,
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no condition exists which would permit any of the parties to terminate this
Agreement, or a condition then exists and the party entitled to terminate
because of that condition elects not to do so, then the transactions herein
contemplated shall be consummated upon such date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
WOLFPACK CORPORATION
Wolfpack hereby represents, warrants and agrees that:
SECTION 2.1 Organization of Wolfpack. Wolfpack is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware, is duly qualified and in good standing as a foreign corporation in
every jurisdiction in which such qualification is necessary, and has the
corporate power and authority to own its properties and assets and to transact
the business in which it is engaged. With the exception of Subsidiary, there
are no corporations or other entities with respect to which (i) Wolfpack owns
any of the outstanding stock or other interests, or (ii) Wolfpack may be deemed
to be in control because of factors or relationships other than the quantity of
stock or other interests owned. Wolfpack has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement is the legal, valid and binding
obligation of Wolfpack, enforceable against Wolfpack in accordance with its
respective terms except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws affecting creditors'
rights generally.
SECTION 2.2 Capitalization of Wolfpack. The authorized capital stock of
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Wolfpack consists of 25,000,000 share of common stock, par value $0.001 per
share, of which no shares are presently issued and outstanding. All shares of
Wolfpack common stock currently issued and
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outstanding have been duly authorized and validly issued and are fully paid and
non-assessable, and have been issued in compliance with any and all applicable
federal and state laws or pursuant to appropriate exemptions therefrom. Except
as set forth in Exhibit 2.2, there are no options, warrants, rights, calls,
commitments or agreements of any character obligating Wolfpack to issue any
shares of its capital stock or any security representing the right to purchase
or otherwise receive any such stock. Shares of Wolfpack common stock to be
issued pursuant to this Agreement, when so issued, will be duly authorized,
validly issued, fully paid and non-assessable.
SECTION 2.3 Character Documents. Certified copies of the Wolfpack and
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Subsidiary Articles of Incorporation and By-Laws, as amended to date, have been
or will be provided to AAM and the Shareholders prior to the Closing.
SECTION 2.4 Corporate Documents. The Wolfpack and Subsidiary
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shareholders' list and corporate minute books are complete and accurate as of
the date hereof and the corporate minute books contain the recorded minutes of
all corporate meetings of shareholders and directors.
SECTION 2.5 Required Authorizations. There have been or will be timely
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filed, given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by Wolfpack or
the consummation by it of the transactions contemplated hereby. Prior to the
Closing, the directors of Wolfpack and Subsidiary shall have approved this
Agreement and the transactions contemplated hereunder and appropriate corporate
filings shall have been made.
SECTION 2.6 Compliance with Law and Government Regulations. Wolfpack is
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in compliance with and is not in violation of, applicable federal, state, local
or foreign statutes, laws and regulations (including without limitation, any
applicable building, zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business. Wolfpack is not subject to any
order, decree, judgment or other sanction of any court, administrative agency or
other tribunal.
SECTION 2.7 Litigation. There is no litigation, arbitration, proceeding
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or investigation pending or threatened to which Wolfpack or Subsidiary is a
party or which may result in any material change in the business of condition,
financial or otherwise, of Wolfpack or in any of its properties or assets, or
which might result in any liability on the part of Wolfpack or Subsidiary, or
which questions the validity of this Agreement or of any action taken or to be
taken pursuant to or in connection with the provisions of this Agreement, and to
the best knowledge of Wolfpack, there is no basis for any such litigation,
arbitration, proceeding or investigation.
SECTION 2.8 Authority. Wolfpack, Subsidiary and their directors will,
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prior to the Closing, approve this Agreement and the transactions contemplated
hereby and will duly authorize the execution and delivery hereof. Wolfpack and
Subsidiary have full power, authority and legal right to enter into this
Agreement and to consummate the transactions contemplated hereby, and all
corporate action necessary to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby has been
duly and validly taken. The execution and delivery of this Agreement, the
consummation of the transactions contemplated
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hereby and compliance by Wolfpack with the provisions hereof will not (a)
conflict with or result in a breach of any provisions of, 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 creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of Wolfpack
under, any of the terms, conditions or provisions of the Articles of
Incorporation or By-Laws of Wolfpack, or any note, bond, mortgage, indenture,
license, lease, agreement or any instrument or obligation to which Wolfpack is a
party or by which it is bound; or (b) violate any order, writ injunction,
decree, statute, rule or regulation applicable to Wolfpack or any of its
properties or assets.
SECTION 2.9 Full Disclosure. None of the representations and warranties
---------------
made by Wolfpack herein, or in any exhibit, certificate or memorandum furnished
or to be furnished by Wolfpack, on its behalf pursuant hereto, contains or will
contain any untrue statement of material fact, or omits any material fact, the
omission of which would be misleading.
ARTICLE III
COVENANTS OF WOLFPACK AND SUBSIDIARY
SECTION 3.1 Conduct Prior to the Closing. Between the date
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hereof and the Closing:
(a) Wolfpack and Subsidiary will comply with all requirements which
federal or state law may impose on it with respect to this Agreement and the
transactions contemplated hereby, and will promptly cooperate with and furnish
written information to AAM in connection with any such requirements imposed upon
the parties hereto in connection therewith;
(b) Wolfpack shall grant to AAM and its counsel, accountants and other
representatives, full access during normal business hours during the period to
the Closing to all of its respective properties, books, contracts, commitments
and records and, during such period, furnish promptly to AAM and such
representatives all information relating to Wolfpack and Subsidiary as AAM may
reasonably request, and shall extend to AAM the opportunity to meet with
Wolfpack's accountants and attorneys to discuss the financial condition of
Wolfpack and Subsidiary; and
(c) Except for the transactions contemplated by this Agreement, Wolfpack
and Subsidiary will conduct its business in the normal course, and shall not
sell, pledge or assign any of its assets without the prior written consent of
AAM.
SECTION 3.2 Affirmative Covenants. Prior to Closing, Wolfpack will do
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following:
(a) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all conditions contained in this
Agreement;
(b) Obtain approval of this Agreement from its directors;
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(c) Reserve, and promptly after the Closing, issue and deliver to the
Shareholders the Wolfpack Shares;
(d) Take all other necessary corporate actions to accomplish those items
set forth in Section 1.3 hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
AAM INVESTMENT, INC. AND XXXXX AND XXXXX XXXXX
AAM and the Shareholders hereby represent, warrant and agree that:
SECTION 4.1 Organization of AAM. AAM is a corporation duly organized,
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validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania, is duly qualified and in good standing in every jurisdiction in
which such qualification is necessary. There are no corporations or other
entities with respect to which (i) AAM owns any of the outstanding stock or
other interests, or (ii) AAM may be deemed to be in control because of factors
or relationships other than the quantity of stock or other interests owned in
such entity except as otherwise disclosed in Exhibit 4.1 annexed hereto and by
this reference made a part hereof. AAM has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
SECTION 4.2 Capitalization of AAM. The authorized capital stock of AAM
---------------------
consists of one (1) share of common stock, par value $1.00 per share, which has
been issued to Xxxxx and Xxxxx Xxxxx (the "AAM Stock"). The AAM Stock has been
duly authorized and validly issued and is fully paid and non-assessable, and has
been issued in compliance with any and all applicable federal and state laws or
pursuant to appropriate exemptions therefrom.
SECTION 4.2 Charter Documents. Complete and correct copies of the
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Articles of Incorporation and By-Laws of AAM and all amendments thereto, have
been or will be delivered to Wolfpack prior to the Closing.
SECTION 4.3 Tax Returns and Payments. All of AAM 's tax returns
------------------------
(federal, state, city, county or foreign) which are required by law to be filed
on or before the date of this Agreement, have been duly filed or extended with
the appropriate governmental authority. AAM has paid all taxes to be due on said
returns, any assessments made against AAM and all other taxes, fees and similar
charges imposed on AAM by any governmental authority (other than those, the
amount or validity of which is being contested in good faith by appropriate
proceedings). No tax liens have been filed and no claims are being assessed with
respect to any such taxes, fees or other similar charges.
SECTION 4.4 Required Authorizations. There have been or will be timely
-----------------------
filed, given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications
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waivers or other actions of any kind required by virtue of execution and
delivery of this Agreement by AAM or the consummation by it of the transactions
contemplated hereby.
SECTION 4.5 Compliance with Law and Government Regulations. AAM is in
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compliance with all applicable statutes, regulations, decrees, orders,
restrictions, guidelines and standard affecting its properties and operations,
imposed by the United States of America or any state to which AAM is subject.
SECTION 4.6 Litigation. There is no litigation, arbitration, proceeding
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or investigation pending or threatened to which AAM is a party or which may
result in any material change in the business of condition, financial or
otherwise, of AAM or in any of its properties or assets, or which might result
in any liability on the part of AAM, or which questions the validity of this
Agreement or of any action taken or to be taken pursuant to or in connection
with the provisions of this Agreement, and to the best knowledge of AAM, there
is no basis for any such litigation, arbitration, proceeding or investigation.
SECTION 4.7 Patents, Trade Names and Rights. Exhibit 4.8 annexed hereto
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and by this reference is made a part hereof, contains a complete list of all
patents, trademarks, service marks, trade marks, service xxxx, trademark and
service xxxx registrations, applications and licenses with respect the forgoing
owned or held by AAM. AAM has no knowledge of any facts and nothing has come to
its attention that would lead it to believe that it has infringed or
misappropriated or is infringing upon any trademark, copyright, patent or other
similar right of any person. No claim relating thereto is pending or to the
knowledge of AAM is threatened.
SECTION 4.8 Governmental Consent. No consent, approval, authorization or
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order of, or registration, qualification, designation, declaration or filing
with, any governmental authority on the part of AAM is required in connection
with the execution and delivery of this Agreement or the carrying out of any
transactions contemplated
SECTION 4.9 Authority. AAM and its shareholders representing no less than
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one hundred percent (100%) of the issued and outstanding shares of AAM capital
stock of record, have approved this Agreement and duly authorized the execution
hereof. AAM and the Shareholders have full power, authority and legal right to
enter into this Agreement on behalf of AAM and its shareholders and to
consummate the transactions contemplated hereby, and all corporate action
necessary to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby has been duly and validly
taken. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and compliance by AAM and the Shareholders with
the provisions hereof will not (a) conflict with or result in a breach of any
provisions of, 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 creation of
any lien, security interest, charge or encumbrance upon any of the properties or
assets of AAM under, any of the terms, conditions or provisions of the Articles
of Incorporation or By-Laws of AAM, or any note, bond, mortgage, indenture,
license, agreement or any instrument or obligation to which AAM is a party or by
which it is bound; or (b) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to AAM or any of its properties or assets.
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SECTION 4.10 Ownership of Shares. The Shareholders are the sole owner
-------------------
of 100% of the AAM capital stock currently issued and outstanding which is to be
transferred to Subsidiary under this Agreement, has full power and authority
transfer such shares of AAM capital stock to Subsidiary hereunder, and that such
shares are free and clear of any liens, charges, mortgages, pledges or
encumbrances and that such shares are not subject to any claims as to the
ownership thereof, or any rights, powers or interest therein, by any third
party.
SECTION 4.11 Investment Purpose. The Shareholders are acquiring the
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Wolfpack Shares for investment purposes only and acknowledges that the Wolfpack
Shares issued hereunder are "restricted securities" and may not be sold, traded
or otherwise transferred without registration under the Securities Act or
exemption therefrom.
SECTION 4.12 Full Disclosure. None of the representations and
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warranties made by the Shareholders or in any exhibit, certificate or memorandum
furnished or to be furnished by, their behalf pursuant hereto, contains or will
contain any untrue statement of material fact, or omits any material fact, the
omission of which would be misleading.
ARTICLE V
COVENANTS OF AAM AND XXXXX AND XXXXX XXXXX
SECTION 5.1 Conduct Prior to the Closing. Between the date hereof and the
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Closing:
(a) Except within the regular course of business, AAM will not enter into
any material agreement, contract or commitment, whether written or oral, or
engage in any transaction, without the prior written consent of Wolfpack;
(b) AAM will not declare any dividends or distributions with respect to
its capital stock or amend its Articles of Incorporation or By-Laws, without the
prior written consent of Wolfpack;
(c) Except within the regular course of business, AAM will not incur any
indebtedness for money borrowed or issue any debt securities, or incur or suffer
to be incurred any liability or obligation of any nature whatsoever, or cause or
permit any lien, encumbrance or security interest to be created or arise on or
in any of its properties or assets, without the prior written consent of
Wolfpack;
(d) AAM will comply with all requirements which federal or state law may
impose on it with respect to this Agreement and the transactions contemplated
hereby, and will promptly cooperate with and furnish written information to AAM
in connection with any such requirements imposed upon the parties hereto in
connection therewith;
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(e) AAM shall grant to Wolfpack and its counsel, accountants and other
representatives, full access during normal business hours during the period to
the Closing to all its respective properties, books, contracts, commitments and
records and, during such period, furnish promptly to Wolfpack and such
representatives all information relating to AAM as Wolfpack may reasonably
request, and shall extend to Wolfpack the opportunity to meet with AAM 's
accountants and attorneys to discuss the financial condition of AAM.
SECTION 5.2 Affirmative Covenants. Prior to Closing, AAM will do the
---------------------
following:
(a) Obtain the approval of its Board of Directors and the Shareholders to
proceed with this Agreement;
(b) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all conditions contained in this
Agreement; and
(c) Promptly notify Wolfpack in writing of any material adverse change in
the financial condition, business, operations or key personnel of AAM, any
threatened material litigation or investigation, any breach of its
representations or warranties contained herein, and any material contract,
agreement, license or other agreement which, if in effect on the date of this
Agreement, should have been included in this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions contemplated in
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this Agreement are consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense or as otherwise agreed to herein.
SECTION 6.2. Brokers and Finders. Each of the parties hereto
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represents, as to itself, that no agent, broker, investment banker or firm or
person is or will be entitled to any broker's or finder's fee or any other
commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
SECTION 6.3 Necessary Actions. Subject to the terms and conditions herein
-----------------
provided, each of the parties hereto agree to use all reasonable efforts to
take, or cause to be taken, all action, and to do or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing, any further action is necessary or
desirable to carry out the purpose of this Agreement, the proper officers and/or
directors of Wolfpack or AAM, as the case may be, shall take all such necessary
action.
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SECTION 6.4 Confidentiality. All parties hereto agree to keep
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confidential this Agreement and all information and documents relating to this
Agreement until such time as the Agreement and the transactions contemplated
hereunder are made public by means of an appropriate press release or by any
other means reasonably assured to make such information publicly available.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are subject to the
fulfillment and satisfaction of each of the following conditions:
SECTION 7.1 Legal Action. No preliminary or permanent injunction or other
------------
order by any federal or state court which prevents the consummation of this
Agreement or any of the transactions contemplated by this Agreement shall have
been issued and remain in effect.
SECTION 7.2 Absence of Termination. The obligations to consummate the
----------------------
transactions contemplated hereby shall not have been canceled pursuant to
Article X hereof.
SECTION 7.3 Required Approvals. Wolfpack and AAM shall have received all
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such approvals, consents, authorizations or modifications as may be required to
permit the performance by Wolfpack and AAM of the respective obligations under
this Agreement, and the consummation of the transactions herein contemplated,
whether from governmental authorities or other persons, and Wolfpack and AAM
shall each have received any and all permits and approvals from any regulatory
authority having jurisdiction required for the lawful consummation of this
Agreement.
SECTION 7.4 "Blue Sky" Compliance. There shall have been obtained any and
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all permits, approvals and consents of the appropriate state securities
commissions of any jurisdictions, and of any other governmental body or agency,
which counsel for Wolfpack may reasonably deem necessary or appropriate so that
consummation of the transactions contemplated by this Agreement may be in
compliance with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF WOLFPACK
All obligations of Wolfpack under this Agreement are subject to the
fulfillment and satisfaction by AAM prior to or at the time of Closing, of each
of the following conditions, any one or more of which may be waived by Wolfpack.
SECTION 8.1 Representations and Warranties True at Closing. All
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representations and warranties of AAM contained in this Agreement will be true
and correct at and as of the time of the
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Closing, and AAM shall have delivered to Wolfpack certificates, dated the date
of the Closing, to such effect and in the form and substance satisfactory to
Wolfpack, and signed, in the case of AAM, by its president and secretary.
SECTION 8.2 Performance. The obligations of AAM to be performed on or
------------
before the Closing pursuant to the terms of this Agreement shall be duly
performed at such time and AAM shall have delivered to Wolfpack a certificate,
dated the date of the Closing, to such effect and in form and substance
satisfactory to Wolfpack.
SECTION 8.3 Authority. All action required to be taken by, or on the part
---------
of AAM and its shareholders to authorize the execution, delivery and performance
of this Agreement by AAM and the consummation of the transactions contemplated
hereby, shall have been duly and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not have
------------------------------------
occurred, since the date hereof, any adverse change in the business, condition
(financial or otherwise), assets or liabilities of AAM or any event or condition
of any character adversely affecting AAM, and it shall have delivered to
Wolfpack, certificates, dated the date of the Closing, to such effect and in
form and substance satisfactory to Wolfpack.
ARTICLE IX
CONDITIONS PRECEDENT OF AAM
All obligations of AAM under this Agreement are subject to the fulfillment
and satisfaction by Wolfpack prior to or at the time of Closing, of each of the
following conditions, any one or more of which may be waived by AAM.
SECTION 9.1 Representations and Warranties True at Closing. All
----------------------------------------------
representations and warranties of Wolfpack contained in this Agreement will be
true and correct at and as of the time of the Closing, and Wolfpack shall have
delivered to AAM certificates, dated the date of the Closing, to such effect and
in the form and substance satisfactory to AAM, and signed, in the case of
Wolfpack, by its president and secretary.
SECTION 9.2 Performance. The obligations of Wolfpack to be performed on
-----------
or before the Closing pursuant to the terms of this Agreement shall have been
duly performed at such time, and Wolfpack shall have delivered to AAM a
certificate, dated the date of the Closing, to such effect and in form and
substance satisfactory to AAM, and signed in the case of Wolfpack, by its
president and secretary.
SECTION 9.3 Authority. All action required to be taken by, or on the part
---------
of Wolfpack and its shareholders to authorize the execution, delivery and
performance of this Agreement by
11
Wolfpack and the consummation of the transactions contemplated hereby, shall
have been duly and validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not have
------------------------------------
occurred, since the date hereof, any adverse change in the business, condition
(financial or otherwise), assets or liabilities of Wolfpack or any event or
condition of any character adversely affecting Wolfpack, and it shall have
delivered to AAM, certificates, dated the date of the Closing, to such effect
and in form and substance satisfactory to AAM and signed, in the case of
Wolfpack, by its president and secretary.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or elsewhere
-----------
to the contrary, this Agreement may be terminated:
(a) By mutual agreement of the parties hereto at any time;
(b) By the Board of Directors of Wolfpack at any time prior to the
Closing, if:
(i) a condition to performance by Wolfpack under this Agreement
or a covenant of AAM and the Shareholders contained herein shall not
be fulfilled on or before the time of the Closing or at such other
time and date specified for the fulfillment for such covenant or
condition; or
(ii) a material default or breach of this Agreement shall be made
by AAM or the Shareholders; or
(c) By the Board of Directors of AAM at any time prior to the Closing, if:
(i) a condition to AAM's performance under this Agreement or a
covenant of Wolfpack or Subsidiary contained herein shall not be
fulfilled on or before the time of the Closing or at such other time
and date specified for the fulfillment for such covenant or condition;
or
(ii) a material default or breach of this Agreement shall be made
by Wolfpack or Subsidiary; or
(d) By any party in the event the Minimum Amount is not raised within one
hundred twenty (120) days from the date of the Offering,
12
(e) By any party in the event the Offering is not made within ninety (90)
days of the date of this Agreement.
SECTION 10.2 Effect of Termination. If this Agreement is terminated,
---------------------
this Agreement, except as to Section 11.1 and Section 11.2, shall no longer be
of any force or effect and there shall be no liability on the party of any party
or its respective directors, officers or stockholders; provided however, that in
the case of a termination without cause by a party or a termination pursuant to
Section 10.1 (b)(i) or 10.1(c)(i) hereof because of a prior material default
under or a material breach of this Agreement by another party, the damages which
the aggrieved party or parties may recover from the defaulting party or parties
shall in no event exceed the amount of out-of-pocket costs and expenses incurred
by such aggravated party or parties in connection with this Agreement, and no
party to this Agreement shall be entitled to any injunctive relief.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Cost and Expenses. All costs and expenses incurred in
-----------------
connection with this Agreement will be paid by the party incurring such
expenses. In the event of any termination of this Agreement pursuant to Section
10.1, subject to the provisions of Section 10.2, Wolfpack, Subsidiary, AAM, and
the Shareholders will each bear their own respective expenses.
SECTION 11.2 Extension of time: Waivers. At any time prior to the
--------------------------
Closing date:
(a) Wolfpack and Subsidiary may (i) extend the time for the performance
of any of the obligations or other acts of AAM or the Shareholders, (ii) waive
any inaccuracies in the representations and warranties of AAM contained herein
or in any documents delivered pursuant hereto by AAM or the Shareholders, (iii)
waive compliance with any of the agreements or conditions contained herein to be
performed by AAM or the Shareholders. Any agreement on the part of Wolfpack and
Subsidiary to any such extension or waiver shall be valid only if set forth in
an instrument, in writing, signed on behalf of Wolfpack and Subsidiary.
(b) AAM and the Shareholders may (i) extend the time for the performance
of any of the obligations or other acts of Wolfpack or Subsidiary, (ii) waive
any inaccuracies in the representations and warranties of Wolfpack or Subsidiary
contained herein or in any documents delivered pursuant hereto by Wolfpack and
(iii) waive compliance with any of the agreements or conditions contained herein
to be performed by Wolfpack or Subsidiary. Any agreement on the party of AAM and
the Shareholders to any such extension or waiver shall be valid only if set
forth in an instrument, in writing, signed on behalf of AAM and the
Shareholders.
SECTION 11.3 Notices. Any notice to any party hereto pursuant to this
-------
Agreement shall be in writing and given by Certified or Registered Mail or by
facsimile, addressed as follows:
13
AAM Investment Counsel, Inc.
and Xxxxx and Xxxxx Xxxxx
c/o Capital Investment Partners, LLC
00 Xxxxxxxx Xxx.
X.X. Xxx 00000
Xxxxxxx, XX 00000
Wolfpack Corporation and Wolfpack
Subsidiary Corp.
c/x Xxxxxx & Gottbetter & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Additional notices are to be given as to each party, at such other address
as should be designated in writing complying as to delivery with the terms of
this Section 11.3. All such notices shall be effective when sent, addressed as
aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to the
-------------------
benefit of and be binding upon the parties hereto and the respective successors
and assigns. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one or
------------
more counterparts, each of which shall be deemed an original and together shall
constitute one documents. The delivery by facsimile of an executed counterpart
of this Agreement shall be deemed to be an original and shall have the full
force and effect of an original executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm that
------------
none of the provisions herein is dependent upon the validity of any other
provision, and if any part of this Agreement is deemed to be unenforceable, the
remainder of the Agreement shall remain in full force and effect.
SECTION 11.7 Headings. The "Article" and "Section" headings are
--------
provided herein for convenience of reference only and do not constitute a part
of this Agreement.
SECTION 11.8 Survival of Representations and Warranties. All terms,
------------------------------------------
conditions, representations and warranties set forth in this Agreement or in any
instrument, certificate, opinion, or other writing providing for in it, shall
survive the Closing and the delivery of the Wolfpack Shares issued hereunder at
the Closing, for a period of one year from the Closing regardless of any
investigation made by or on behalf of any of the parties hereto.
SECTION 11.9 Assignability. This Agreement shall not be assigned by any
-------------
of the parties hereto without the prior written consent of the other parties.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in a manner legally binding upon them as of the date first above
written.
WOLFPACK CORPORATION Attest:
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
-------------------------------- ------------------
Xxxxx X. Xxxxx, President Secretary
WOLFPACK SUBSIDIARY CORP. Attest:
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
-------------------------------- ------------------
Xxxxx X. Xxxxx, President Secretary
AAM INVESTMENT COUNCIL, INC. Attest:
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
-------------------------------- ------------------
Xxxxx X. Xxxxx, President Secretary
/s/ Xxxxx X. Xxxxx /s/ Xxxxx Xxxxx
--------------------------------------- ------------------------------------
Xxxxx X. Xxxxx, Sole Shareholder of AAM Xxxxx Xxxxx, Sole Shareholder of AAM
15
Exhibit 2.2
Wolfpack and Subsidiary have entered into an acquisition agreement whereby
Wolfpack will issue one million shares of its common stock in exchange for
Subsidiary's acquisition of all of its shares of Xxxx Xxxxxx, Inc.
