AGREEMENT AND PLAN OF MERGER
BY AND AMONG
RV XXXXXXX.XXX, INC.
AND
SOUTHSHORE CORPORATION
AND
SOUTHSHORE ACQUISITION CORP.
DATED AS OF DECEMBER 20, 1999
TABLE OF CONTENTS
SECTION 1: GENERAL DEFINITIONS 1
1.2 Best Knowledge 1
1.3 Control 1
1.4 Exchange Act 1
1.5 Fiscal Year 2
1.6 Governmental Authority 2
1.7 Governmental Requirement 2
1.8 Legal Requirements 2
1.9 Net Worth 2
1.10 Person 2
1.11 Exhibit 2
1.12 Section 2
1.13 Securities Act 2
1.14 Taxes 2
SECTION 2: THE MERGER 3
2.1 The Merger 3
2.2 Filing 3
2.3 Effective Time of the Merger 3
2.4 Closing: Closing Date 3
SECTION 3: APPROVALS 3
3.1 Southshore Approvals 3
3.2 RV Approvals 3
3.3 Dissenter Rights 4
SECTION 4: CONVERSION OR CANCELLATION OF SHARES 4
4.1 Conversion or Cancellation of Shares 4
4.2 Surrender and Payment 4
4.3 Subscription Agreements 5
4.4 No Further Transfers 5
SECTION 5: CERTAIN EFFECTS OF MERGER 5
5.1 Effect of Merger 5
5.2 Further Assurances 5
SECTION 6: POST-MERGER GOVERNANCE 6
6.1 Articles of Incorporation and Bylaws 6
6.2 Directors, Officers and Employees 6
SECTION 7: COVENANTS AND CONDITIONS OF CLOSING 7
7.1 Covenants Regarding the Closing 7
7.2 Conditions to Obligation of Southshore 7
7.3 Conditions to Obligation of RV 10
7.4 Specific Items to be Delivered at the Closing 12
SECTION 8: REPRESENTATIONS AND WARRANTIES OF SOUTHSHORE 14
8.1 Organization and Standing 14
8.2 Subsidiaries, etc. 15
8.3 Qualification 15
8.4 Financial Statements 15
8.5 Capitalization of Southshore 16
8.6 No Defaults 16
8.7 Taxes 16
8.8 No Actions, Proceedings, etc. 16
8.9 Post Balance Sheet Changes 16
8.10 No Breaches 17
8.11 Condition of Southshore's Assets 17
8.12 Inventory 17
8.13 Accounts Receivable 17
8.14 Southshore Acts and Proceedings 17
8.15 Patents and Other Intangible Rights 18
8.16 Changes in Suppliers and Customers 18
8.17 No Liens or Encumbrances 18
8.18 Employee Matters 18
8.19 Legal Proceedings and Compliance with Law 19
8.20 Contract Schedules 19
8.21 Labor Matters 20
8.22 Insurance 20
8.23 Environmental 20
8.24 Compliance with Reporting Requirements 21
SECTION 9: COVENANTS OF SOUTHSHORE 21
9.1 Preservation of Business 21
9.2 Ordinary Course 21
9.3 Negative Covenants 22
9.4 Access to Books and Records, Premises, etc. 22
9.5 Compensation 22
SECTION 10: REPRESENTATIONS AND WARRANTIES OF RV 22
10.1 Organization and Standing 23
10.2 Subsidiaries, etc. 23
10.3 Qualification 23
10.4 Financial Statements 23
10.5 Capitalization of RV 23
10.6 No Defaults 24
10.7 Taxes 24
10.8 No Actions. Proceedings, etc. 24
10.9 Post Balance Sheet Changes 24
10.10 No Breaches 25
10.11 Condition of RV's Assets 25
10.12 Inventory 25
10.13 Accounts Receivable 25
10.14 RV Acts and Proceedings 25
10.15 Patents and Other Intangible Rights 25
10.16 Changes in Suppliers and Customers 26
10.17 No Liens or Encumbrances 26
10.18 Legal Proceedings and Compliance with Law 27
10.19 Contract Schedules 27
10.20 Labor Matters 28
10.21 Insurance 28
10.22 Environmental 28
SECTION 11: COVENANTS OF RV 29
11.1 Preservation of Business 29
11.2 Ordinary Course 29
11.3 Negative Covenants 29
11.4 Access to Books and Records,. Premises, etc. 30
11.5 Compensation 30
SECTION 12: TERMINATION 30
12.1 Termination 30
12.2 Effect of Termination 31
SECTION 13: INDEMNIFICATION AND REMEDIES FOR BREACH 31
13.1 Indemnification by Southshore and SAC 31
13.2 Indemnification by RV 31
13.3 Additional Notice 32
13.4 Determination of Damages and Related Matters 32
13.5 Remedies for Breach 33
SECTION 14: NONDISCLOSURE OF CONFIDENTIAL INFORMATION 33
SECTION 15: EXPENSES 34
SECTION 16: MISCELLANEOUS 34
16.1 Attorney's Fees 34
16.2 Survival and Incorporation of Representations 35
16.3 Incorporation by Reference 35
16.4 Parties in Interest 35
16.5 Amendments and Waivers 35
16.6 Waiver 35
16.7 Governing Law - Construction 36
16.8 Limitation of Actions 36
16.9 Notices 37
16.10 Fax/Counterparts 37
16.11 Captions 37
16.12 Severabilitv 37
16.13 Jurisdiction and Venue 37
16.14 Good Faith Cooperation and Additional Documents 37
16.15 Legal Counsel 37
16.16 No Finders or Brokers Fees 38
16.17 Assignment 38
16.18 List of Exhibits 38
16.19 Entire Agreement - Amendment 39
16.20 Authority to Si
EXHIBITS
Exhibit 2.2 Short Form Agreement and Plan of Merger
Exhibit 4.3 Subscription Agreement
Exhibit 6.2(d) Employment Agreement with Xxxx Xxxxxx
Exhibit 8.6 Southshore Disclosure Schedule (Material Defaults)
Exhibit 8.7 Southshore Exceptions to Timely Filing of Taxes; Tax
Related Disputes
Exhibit 8.8 Southshore Actions, Proceedings, Orders, Writs,
Injunctions, Decrees, Liability for Damages
Exhibit 8.9 Southshore Post Balance Sheet Changes
Exhibit 8.11 Southshore Third Party Proprietary Interest in Intangible
Assets
Exhibit 8.12 Southshore Exceptions to Inventory Valuation, Condition
and Marketability
Exhibit 8.13 Southshore Exceptions to Collectability of Accounts
Receivable(Material Counterclaims or Set-Offs)
Exhibit 8.15 Southshore Exceptions to Ownership of Patents and Other
Intangible Rights
Exhibit 8.16 Southshore Changes in Suppliers and Customers
Exhibit 8.17 Southshore Liens or Encumbrances
Exhibit 8.18 Southshore and SAC Current Employees
Exhibit 8.19 Southshore Pending or Threatened Legal, Administrative, or
Other Proceedings or Governmental Investigation,
Exceptions to Compliance with Laws, Ordinances,
Requirements, Regulations, or Orders
Exhibit 8.20 Southshore Material Contract Agreements
Exhibit 8.20(f) Southshore Defaults or Breaches of Existing Contracts,
Agreements, Leases, Licenses, Plans, Arrangements and
Commitments
Exhibit 8.22 Southshore Insurance Coverage
Exhibit 8.23 Southshore Environmental Concerns: Hazardous Waste
Production, Storage, etc.
Exhibit 10.4 RV Financial Statements
Exhibit 10.5 RV Other Equity Securities; Outstanding Purchase Rights
Exhibit 10.6 RV Disclosure Schedule (Material Defaults)
Exhibit 10.7 RV Exceptions to Timely Filing of Taxes; Tax Related
Disputes
Exhibit 10.8 RV Pending or Threatened Actions or Proceedings
Exhibit 10.9 RV Post Balance Sheet Changes
Exhibit 10.11 RV Third Party Proprietary Interest in Intangible Assets
Exhibit 10.12 RV Exceptions to Inventory Valuation, Condition and
Marketability
Exhibit 10.13 RV Exceptions to Collectability of Accounts Receivable
(Material Counterclaims or Set-Offs)
Exhibit 10.15 RV Exceptions to Ownership of Patents and Other Intangible
Rights
Exhibit 10.16 RV Changes in Suppliers and Customers
Exhibit 10.17 RV Liens or Encumbrances
Exhibit 10.18 RV Pending or Threatened Legal, Administrative, or
Proceedings or Other Material DocumentsGovernmental
Investigation, Exceptions to Compliance with Laws,
Ordinances, Requirements, Regulations or Orders
Exhibit 10.19 RV Material Contract Agreements
Exhibit 10.19(f) RV Defaults or Breaches of Existing Contracts, Agreements,
Leases, Licenses, Plans, Arrangements and Commitments
Exhibit 10.20 RV Insurance Coverage
Exhibit 10.21 RV Environmental Concerns: Hazardous Waste Production,
Storage, etc.
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered
into this 20th day of December, 1999, by and among RV XXXXXXX.XXX, INC., a
Colorado corporation ("RV"), SOUTHSHORE CORPORATION, a Colorado corporation
("Southshore") and SOUTHSHORE ACQUISITION CORP., a Colorado Subsidiary of
Southshore ("SAC").
WITNESSETH:
WHEREAS, RV is a company formed for the purpose of developing an Internet
web site portal for the recreational vehicle industry; and
WHEREAS, Prior to the Closing, Southshore shall organize a shell
acquisition corporation and become the owner in the aggregate of ten (10)
shares (the "Shares") of the issued and outstanding Common Stock of SAC, $.001
par value per share, representing all the issued and outstanding shares of the
capital stock of SAC; and
WHEREAS, following the Closing, RV intends to acquire one or more RV
dealerships; and
WHEREAS, the parties hereto desire to set forth certain representations,
warranties and covenants under which a merger of SAC and RV will occur.
NOW, THEREFORE, for and in consideration of the premises, the mutual
representations, warranties and covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1: GENERAL DEFINITIONS
For purposes of this Agreement, the following terms shall have the
respective meanings set forth below:
1.1 AFFILIATE. "Affiliate" of any Person shall mean any Person
Controlling, controlled by or under common Control with such Person.
1.2 BEST KNOWLEDGE. "Best Knowledge" shall mean both what a Person knew
as well as what the Person should have known had the Person exercised
reasonable diligence. When used with respect to a Person other than a natural
person, the term "Best Knowledge" shall include matters that are known to the
directors, officers, partners, trustees, administrators, executors, managers,
employees, consultants and agents of the Person.
1.3 CONTROL. "Control" and all derivations thereof shall mean the
ability to either (i) vote (or direct the vote of) 50% or more of the voting
interests in any Person or (ii) direct the affairs of another, whether through
voting power, contract or otherwise.
1.4 EXCHANGE ACT. "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
1.5 FISCAL YEAR. "Fiscal Year" shall mean a twelve-month period
beginning January 1;
1.6 GOVERNMENTAL AUTHORITY. "Governmental Authority "shall mean any and
all foreign, federal, state or local governments, governmental institutions,
public authorities and governmental entities of any nature whatsoever, and any
subdivisions or instrumentalities thereof, including, but not limited to,
departments, boards, bureaus, commissions, agencies, courts, administrations
and panels, and any division or instrumentalities thereof, whether permanent
or ad hoc and whether now or hereafter constituted or existing.
1.7 GOVERNMENTAL REQUIREMENT. "Governmental Requirement" shall mean any
and all laws (including, but not limited to, applicable common law
principles), statutes, ordinances, codes, rules regulations, interpretations,
guidelines, directions, orders, judgments, writs, injunctions, decrees,
decisions or similar items or pronouncements, promulgated, issued, passed or
set forth by any Governmental Authority.
1.8 LEGAL REQUIREMENTS. "Legal Requirements" means applicable common
law and any statute, ordinance, code or other laws, rule, regulation,
order, technical or other standard, requirement, judgment, or procedure
enacted, adopted, promulgated, applied or followed by any governmental
authority, including, without limitation, any order, decree, award, verdict,
findings of fact, conclusions of law, decision or judgment, whether or not
final or appealable, of any court, arbitrator, arbitration board or
administrative agency.
1.9 NET WORTH. "Net Worth" shall mean the assets of a Person minus the
liabilities of the Person, as of a given date as determined in accordance with
generally accepted accounting principles.
1.10 PERSON. "Person" shall mean any natural person, any Governmental
Authority and any entity the separate existence of which is recognized by any
Governmental Authority or Governmental Requirement, including, but not limited
to, corporations, partnerships, joint ventures, joint stock companies, trusts,
estates, companies and associations, whether organized for profit or
otherwise.
1.11 EXHIBIT. Unless otherwise stated herein, the term "Exhibit" when
used in this Agreement shall refer to the Exhibits to this Agreement. The
Exhibits to this Agreement may be attached to this Agreement or may be set
forth in a separate document denoted as the Exhibits to this Agreement, or
both.
1.12 SECTION. Unless otherwise stated herein, the term "Section" when
used in this Agreement shall refer to the Sections of this Agreement.
1.13 SECURITIES ACT. "Securities Act" shall mean the Securities Act of
1933, as amended.
1.14 TAXES. "Tax" and "Taxes" shall mean any and all income, excise,
franchise or other taxes and all other charges or fees imposed or collected by
any Governmental Authority or pursuant to any Governmental Requirement, and
shall also include any and all penalties, interest, deficiencies, assessments
and other charges with respect thereto.
SECTION 2: THE MERGER
2.1 THE MERGER. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in Section 2.3 herein). SAC shall be merged
(the "Merger") with and into RV upon the terms and conditions set forth herein
as permitted by and in accordance with the Colorado Corporation Code (the
"Colorado Corporation Law"). Thereupon, the separate existence of SAC shall
cease, and RV, as the surviving corporation in the Merger (the "Surviving
Corporation"), shall continue to exist under and be governed by the Colorado
Corporation Law, with all its purposes, objects, rights, privileges,
immunities, powers and franchises continuing unaffected and unimpaired by the
Merger. The name of the Surviving Corporation shall be "RV Xxxxxxx.xxx, Inc."
2.2 FILING. As soon as practicable following fulfillment or waiver of
the conditions specified in Sections 7, 9 and II hereof, and provided that
this Agreement has not been terminated pursuant to Section 12 hereof, SAC and
RV will cause a short form Agreement and Plan of Merger, in the form attached
hereto as Exhibit 2.2, to be executed, acknowledged and filed with the
Secretary of State of each of Colorado as provided in Section 7-7-104 of the
Colorado Corporation Law and obtain a copy of the Articles of Merger,
certified by the Secretary of State of the State of Colorado.
2.3 EFFECTIVE TIME OF THE MERGER. The Merger shall become effective
immediately upon the filing of the Articles of Merger with the Secretary of
State of the State of Colorado in accordance with the Colorado Corporation
Law. The date and time of the completion of such filings is herein sometimes
referred to as the "Effective Time".
2.4 CLOSING: CLOSING DATE. Subject to the terms and conditions set
forth herein, the consummation of the transactions referenced above shall take
place (the "Closing") on ___________, 1999, at ___________ __.m. Mountain Time
at the offices of Xxxxxx & Xxxxxxx, Xxxxxx-Xxxxxx House, 1507 Pine Street,
Boulder, Colorado, or at such other time, date and place as RV and SAC shall
designate (the "Closing Date").
SECTION 3: APPROVALS
3.1 SOUTHSHORE APPROVALS. Subject to the provisions hereof, the Board
of Directors of Southshore shall, by written unanimous consent approve the
transactions contemplated by this Agreement in its capacity as the sole
shareholder of SAC; provided, however, that such approval shall be subject to
their satisfaction that the issuance of the Common Stock of Southshore to the
RV Shareholders shall be and is exempt from the registration requirements of
the Securities Act, is undertaken without violation of the anti-fraud
provisions of the Securities Act and has been consummated in conformity with
all other applicable Legal Requirements, including the requirements of Rule
14(f)-1 under the Exchange Act.
3.2 RV APPROVALS. As promptly as practicable after the date hereof. RV
shall take all action necessary or appropriate under the Colorado Corporation
Law, and the Articles of Incorporation and Bylaws of RV, to convene a meeting
of its Stockholders as promptly as practicable for the purpose of considering
and voting upon appropriate resolutions approving the transactions
contemplated by this Agreement, or in lieu thereof, obtain such approval by
unanimous written consent.
3.3 DISSENTER RIGHTS. At all times, and as applicable, RV shall comply
with applicable Legal Requirements including, without limitation, the payment
of cash for dissenting shares related to the Merger.
SECTION 4: CONVERSION OR CANCELLATION OF SHARES
4.1 CONVERSION OR CANCELLATION OF SHARES. At the Effective Time, the
issued and outstanding shares of Common Stock, $.001 par value, of RV ("RV
Common Stock") shall, by virtue of the Merger, be cancelled and converted into
shares of the capital stock of Southshore, as follows:
(a) Subject to compliance with Sections 5 and 17(a) of the
Securities Act, the shares of RV Stock issued and outstanding immediately
prior to the Effective Time, excluding any such shares held in the treasury of
RV, shall be converted into the right to receive an equal number of shares of
Common Stock of Southshore, $.01 par value per share (the "Southshore Stock").
Such right may be exercised by the surrender of the certificates representing
such shares of RV stock in accordance with Section 4.2 hereof. The number of
shares of Southshore Stock issued upon surrender shall be calculated as
follows:
The aggregate number of shares of Southshore Stock so issuable in
the conversion of the RV Stock shall be 5,500,000. The Southshore
Stock shall be allocated to the holders of RV Stock pro rata on a
one-for-one basis.
(b) Each share of Southshore Stock, issued under paragraph (a)
above shall be Restricted Stock pursuant to Rule 144 promulgated under the
Securities Act.
(c) Each share of RV Stock, if any, held in RV's treasury
immediately prior to the Effective Time shall be canceled and retired and no
payment shall be made in respect thereof.
(d) At the Effective Time, all outstanding shares of SAC shall be
converted into an equal number of shares of Common Stock of RV.
4.2 SURRENDER AND PAYMENT. Subject to compliance with Sections 5 and
17(a) of the Securities Act, after the Effective Time, each holder of a
certificate representing an issued and outstanding share of RV Stock shall be
entitled upon surrender of such certificate along with a fully executed
Subscription Agreement in the form of Exhibit 4.3, to Southshore, to receive
the Southshore stock as set forth in Section 4.1 above. Until so surrendered,
each certificate which immediately prior to the Effective Time represented an
issued and outstanding share of RV Stock shall, upon and after the Effective
Time, be deemed for all purposes to represent and evidence only the right to
receive Southshore Stock as set forth in Section 4.1. If any exchange for
shares of RV Stock is to be made in a name other than that in which the
certificate therefor surrendered for exchange is registered, it shall be a
condition of such payment that the certificate so surrendered be properly
endorsed or otherwise in proper form for transfer and that the person
requesting such payment either pay to Southshore any transfer or other similar
taxes required by reason of the payment to a person other than the registered
holder of the certificate surrendered or establish to the satisfaction of
Southshore that such tax has been paid or is not payable.
4.3 SUBSCRIPTION AGREEMENTS. Each of the RV Shareholders receiving
Southshore Stock pursuant to the terms hereof shall have delivered a fully
executed Subscription Agreement in the form included on Exhibit 4.3.
4.4 NO FURTHER TRANSFERS. On and after the Effective Time, no transfer
of the shares of RV Stock issued and outstanding immediately prior to the
Effective Time shall be made on the stock transfer books of RV.
SECTION 5: CERTAIN EFFECTS OF MERGER
5.1 EFFECT OF MERGER. On and after the Effective Time, the separate
existence of SAC shall cease and SAC shall be merged with and into RV, which
as the Surviving Corporation shall, consistently with its Articles of
Incorporation succeed to, and without other transfer, possess all the rights,
privileges, immunities, powers and franchises of public as well as private
nature, and be subject to all restrictions, disabilities and duties of SAC;
and all rights, privileges, immunities, powers and franchises of SAC, and all
property, real, personal and mixed, causes of action and every other asset of,
and all debts due to SAC on whatever account as well as stock subscriptions
and all other things in action or belonging to SAC shall vest in the Surviving
Corporation; and all property, rights, privileges, immunities, powers and
franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of SAC, and
the title to any real estate vested by deed or otherwise in SAC, and the title
to any real estate vested by deed or otherwise in SAC shall not revert or be
in any way impaired but all rights of creditors and all liens upon any
property of SAC shall be preserved unimpaired, and all debts, liabilities and
duties of SAC shall thenceforth attach to the Surviving Corporation, and may
be enforced against it to the same extent as if such debts, liabilities and
duties had been incurred or contracted by it. Any action or proceeding
pending by or against SAC may be prosecuted to judgment, which shall bind the
Surviving Corporation, or the Surviving Corporation may be proceeded against
or substituted in its place.
5.2 FURTHER ASSURANCES. If at any time after the Effective Time the
Surviving Corporation shall consider any further deeds, assignments or
assurances in law or any other action necessary, desirable or proper (a) to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation
the title to any property or rights of SAC acquired or to be acquired by
reason of, or as a result of, the Merger, or (b) otherwise to carry out the
purposes of this Agreement, SAC agrees that it and its proper officers and
directors shall and will execute and deliver all such property, deeds,
assignments and assurances in law and take all other action necessary,
desirable or proper to vest, perfect or confirm title to such property or
right in the Surviving Corporation and otherwise to carry out the purposes of
this Agreement.
SECTION 6: POST-MERGER GOVERNANCE
6.1 ARTICLES OF INCORPORATION AND BYLAWS. At the Effective Time, the
Articles of Incorporation and By-Laws of RV as in effect immediately prior to
the Effective Time, shall be and continue to be the Articles of Incorporation
and By-Laws of RV, as the Surviving Corporation, until duly amended in
accordance with law.
6.2 DIRECTORS. OFFICERS AND EMPLOYEES.
(a) DIRECTORS OF SOUTHSHORE. On Closing, the current members of
the Board of Directors of Southshore shall, in accordance with the Colorado
Corporation Law and the Articles of Incorporation and By-Laws of Southshore,
cause the Board of Directors of Southshore to be reconstituted to consist of a
total of three (3) persons, to be designated by the management of RV. The
current members of the Southshore Board of Directors shall resign their
respective board memberships.
(b) INFORMATION STATEMENT. At least ten (10) days prior to the
Closing, Southshore shall cause to be mailed to its shareholders of record and
filed with the Securities and Exchange Commission (the "Commission") an
information statement meeting the requirements of Rule 14(f)-1 under the
Exchange Act.
(c) EXECUTIVE OFFICERS OF SOUTHSHORE. Immediately after the
Effective Time, the newly constituted Board of Directors of Southshore shall
elect persons to serve as Executive Officers of Southshore any persons serving
as Executive Officers of Southshore immediately prior to the Effective Time
who will not continue in such capacity immediately after the Effective Time
shall tender their resignations in accordance with applicable Legal
Requirements.
(d) EMPLOYMENT AGREEMENTS OF SOUTHSHORE. At Closing, Southshore
shall enter into a written Employment Agreement with Xxxx Xxxxxx as
____________________, substantially in the form of Exhibit 6.2(d) hereto.
(e) DIRECTORS OF RV. Immediately after the Effective Time, the
Board of Directors of RV shall be reconstituted to consist of one (1) or more
persons as shall be appointed by a majority vote of the newly constituted
Board of Directors of Southshore.
(f) EXECUTIVE OFFICERS OF RV. Immediately after the Effective
Time, any person serving as an executive officer of RV immediately prior to
the Effective Time who will not continue in such capacity immediately after
the Effective Time shall tender their resignation in accordance with
applicable legal requirements. The executive officers of RV immediately after
the Effective Time shall be persons duly appointed by the newly constituted
directors of RV.
SECTION 7: COVENANTS AND CONDITIONS OF CLOSING
7.1 COVENANTS REGARDING THE CLOSING. The parties hereto hereby covenant
and agree that they shall (i) use reasonable efforts to cause all of their
respective representations and warranties set forth in this Agreement to be
true on and as of the Closing Date, (ii) use reasonable efforts to cause all
of their respective obligations that are to be fulfilled on or prior to the
Closing Date to be so fulfilled, (iii) use reasonable efforts to cause all
conditions to the Closing set forth in this Agreement to be satisfied on or
prior to the Closing Date, and (iv) deliver to each other at the Closing the
certificates, updated lists, opinion of counsel, notices, consents,
authorizations, approvals, agreements, transfer documents, receipts and
amendments contemplated by Sections 7, 8 and 10 (with such additions or
exceptions to such items as are necessary to make the statements set forth in
such items accurate, provided that if any such additions or exceptions cause
any of the conditions to the parties' obligations hereunder as set forth in
Sections 7, 8 and 10 below not to be fulfilled, such additions and exceptions
shall in no way limit the rights of the parties to terminate this Agreement or
refuse to consummate the transactions contemplated hereby.) All
indemnifications, guarantees, covenants, agreements, representations and
warranties made by the parties hereunder or pursuant hereto or in connection
with the transactions contemplated hereby shall survive the Closing regardless
of any investigation at any time made by or on behalf of the parties.
7.2 CONDITIONS TO OBLIGATION OF SOUTHSHORE. The obligation of
Southshore to complete the Merger on the Closing date on the terms set forth
in this Agreement is, at the option of Southshore, subject to the satisfaction
or waiver by Southshore of each of the following conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by RV in this Agreement shall be correct
in all material respects on and as of the Closing date with the same force and
effect as though such representations and warranties had been made on the
Closing date.
(b) COMPLIANCE WITH COVENANTS. All covenants which RV is required
to perform or comply with on or before the Closing date shall have been fully
complied with or performed in all material respects.
(c) CORPORATE APPROVALS. The Board of Directors and shareholders
of RV shall have approved and ratified this Agreement and shall have
authorized the appropriate officers of RV to execute same and fully perform
its terms.
(d) CONSENTS AND APPROVALS. To the extent that any material lease,
mortgage, deed of trust, contract or agreement to which RV is a party shall
require the consent of any person to the exchange of RV's shares of common
stock or any other transaction provided for herein, such consent shall have
been obtained; provided, however, that RV shall not make, as a condition for
the obtaining of any such consent, any agreements or undertakings not approved
in writing by Southshore to the extent that such condition otherwise has an
effect on Southshore.
(e) REVIEW AND DUE DILIGENCE. Southshore, its investment bankers,
legal counsel and/or auditors shall have had the opportunity to complete, and
shall have completed, a satisfactory due diligence investigation of RV
together with a satisfactory review of RV's corporate status and the
marketability of title to RV's property.
(f) NO GOVERNMENTAL ACTIONS. No action or proceeding before any
governmental authority shall have been instituted or threatened to restrain or
prohibit the transactions contemplated by this Agreement, and the Companies
shall have delivered to each other certificates dated as of the Closing Date
and executed by such parties, staling that to their Best Knowledge, no such
items exist. No governmental authority shall have taken any other action as a
result of which the management of Southshore, in its sole discretion,
reasonably deems it inadvisable to proceed with the transactions contemplated
by this Agreement.
(g) NO MATERIAL ADVERSE CHANGE. No material adverse change in the
business, property or assets of any party hereto shall have occurred, and no
loss or damage to any of the assets, whether or not covered by insurance, with
respect to any party hereto has occurred, and the parties hereto shall have
delivered to each other certificates dated as of the Closing Date and executed
by each of the parties to all such effects.
(h) UPDATE OF CONTRACTS. The parties hereto shall have delivered
to each other an accurate list, as of the Closing Date, showing (i) all
agreements, contracts and commitments of the type listed on Exhibits 8.20 and
10.13 entered into since the date of this Agreement; and (ii) all other
agreements, contracts and commitments related to the businesses or the assets
of the respective parties entered into since the date of this Agreement,
together with true, complete and accurate copies of all such documents (the
"New Contracts"). Each party shall have had the opportunity to review and
approve the New Contracts of the other, and any of the parties shall have the
right to delay the Closing for up to ten (10) days if it in its sole
discretion deems such delay necessary to enable it to adequately review the
New Contracts.
(i) APPROVAL OF COUNSEL. All actions, proceedings, instruments and
documents required or incidental to carry out this Agreement, including all
schedules and exhibits thereto, and all other related legal matters shall have
been approved by Xxxxxx & Xxxxxxx, LLC, counsel to RV and SAC, and Krys,
Boyle, Xxxxxxxx & Xxxxxx, counsel to Southshore.
(j) NO ADVERSE INFORMATION. The investigations with respect to the
parties, the assets and the respective businesses performed by each party's
respective professional advisors and other representatives shall not have
revealed any information concerning the other parties, their assets or their
business and with respect to the backgrounds of the proposed directors and
officers of Southshore nominated by RV that has not been made known to the
discovering party, in writing prior to the date of this Agreement and that, in
the opinion of such party and its advisors, materially and adversely affects
the business or assets of the other party or the viability of the transaction
contemplated by this Agreement.
(k) COURSE OF BUSINESS. During the period from the date of this
Agreement until the Closing Date, RV shall have carried on its business which
consists of completing a private offering of its securities and entering into
agreements to acquire one or more RV dealerships.
(l) LIENS. RV shall have delivered to Southshore a reasonably
current lien and judgment search (both state and county levels in each
jurisdiction where the party is qualified to or is doing business or owns
material assets) confirming the absence of any judicial liens, security
interests, tax liens and similar such liens affecting any of its business or
assets. Each and every lien or encumbrance of any nature, if any, relating to
the assets, business, or the shares of common stock of RV shall have been
terminated and released, and proof thereof delivered to Southshore.
(m) OTHER DOCUMENTS. The parties shall have delivered or caused to
be delivered all other documents, agreements, resolutions, certificates or
declarations as each respective party or its attorneys may have reasonably
requested.
(n) GOVERNMENTAL AND REGULATORY APPROVALS. The parties shall have
obtained evidence, in form and substance satisfactory to each of them, that
there have been obtained all consents, approvals and authorizations required
by this Agreement, including, without limitation, the following:
(i) RV Stockholder approval of all the transactions
contemplated pursuant to this Agreement; and
(ii) All regulatory approvals necessary for RV to conduct
business in the ordinary course in each jurisdiction where
such approval may be required.
(o) DISSENTING SHAREHOLDERS. All validly dissenting RV
Shareholders shall have been paid, or provision made therefor, or the number
of dissenting shares of RV Common Stock does not exceed two percent (2%) of
the RV Common Shares.
(p) AUDIT CONFIRMATION. The parties recognize that, in order to
comply with the reporting requirements of the Exchange Act, it will be
necessary for Southshore to prepare and file with the Commission a Current
Report on Form 8-K which must include the audited financial statements of RV
and pro forma financial information in accordance with Item 7 of Form 8-K.
Prior to Closing, Southshore shall have received confirmation from its
independent accountants or the independent public accountants selected by RV
that books and records of RV will permit the preparation by Southshore of
audited financial statements, together with report of independent public
accountants, in conformity with generally accepted accounting principles
consistently applied and in compliance with all requirements of Regulation SX
under the Securities Act.
(q) FEDERAL AND STATE SECURITIES LAWS. The sale and/or issuance of
Southshore securities pursuant to the Merger shall have been cleared by all
applicable federal and state securities authorities or the issuance of such
securities shall be exempt from registration with said authorities.
(r) PRIVATE PLACEMENT. RV shall have completed a private placement
of its securities exclusively to persons who qualify as "accredited investors"
within the meaning of Rule 501(a) of Regulation D realizing gross revenues of
at least Six Hundred Thousand Dollars ($600,000).
(s) URL NAME. Prior to the Closing, RV shall have acquired
ownership to the following URL names:
XXX.xxx
Destination Xxxxxxx.xxx
XXX.xxx.xxx
XXX Home Xxxx.xxx
XXX Home Xxxx.xxx
MYRV Xxx.xxx
MYRV Xxx.xxx
MYRV Xxxxx.xxx
MYRV Xxxxx.xxx
RV Xxxxxxx.xxx.xxx
RV Xxxxxxx.xxx.xxx
XXXxxxxxx.xxx
XXXxxxxxx.xxx
RV Home Xxxx.xxx
RV Home Xxxx.xxx
RV Xxxxxxxx.xxx
RV Xxxxxxxx.xxx
RV Xxxxxx.xxx
RV Xxxxxxxxxxx.xxx
RV Xxxxxxxxxxx.xxx
RV Xxxxxxxxx.xxx
RV Xxxxxxxxx.xxx
RV Xxxxxxxxxx.xxx
RV Xxxxxxxxxx.xxx
RV Xxxxxxxx.xxx
RV Xxxxxxxx.xxx
RV Xxxxx.xxx
(s) COMPLIANCE WITH SECTIONS 5 AND 17 OF THE SECURITIES ACT. The
Board of Directors of Southshore shall be satisfied that the issuance of
Common Stock to the RV shareholders is in compliance with the provisions of
Sections 5 and 17 of the Securities Act.
7.3 CONDITIONS TO OBLIGATION OF RV. The obligations of RV to complete
the Merger on the Closing date on the terms set forth in this Agreement is, at
the option of RV, subject to the satisfaction or waiver by RV of each of the
following conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by Southshore and SAC in this Agreement
shall be correct in all material respects on and as of the Closing date with
the same force and effect as though such representations and warranties had
been made on the Closing date.
(b) COMPLIANCE WITH COVENANTS. All covenants which Southshore and
SAC is required to perform or comply with on or before the Closing date shall
have been fully complied with or performed in all material respects.
(c) CORPORATE APPROVALS. The Board of Directors of Southshore and
SAC shall have approved and ratified this Agreement and shall have authorized
the appropriate officers to execute same and fully perform its terms.
(d) CONSENTS AND APPROVALS. To the extent that any material lease,
mortgage, deed of trust, contract or agreement to which Southshore and SAC is
a party shall require the consent of any person to the exchange of Southshore
and SAC's shares of common stock or any other transaction provided for herein,
such consent shall have been obtained; provided, however, that Southshore and
SAC shall not make, as a condition for the obtaining of any such consent, any
agreements or undertakings not approved in writing by RV to the extent that
such condition otherwise has an effect on RV or Southshore and SAC.
(e) REVIEW AND DUE DILIGENCE. RV and its legal counsel and/or
auditors shall have had the opportunity to complete, and shall have completed,
a satisfactory due diligence investigation of Southshore and SAC, together
with a satisfactory review of Southshore and SAC's corporate status, the
marketability of title to Southshore and SAC's property, and compliance with
all reporting requirements imposed by or on account of any federal or state
securities laws or regulations.
(f) NO GOVERNMENTAL ACTIONS. No action or proceeding before any
governmental authority shall have been instituted or threatened to restrain or
prohibit the transactions contemplated by this Agreement, and the parties
hereto shall have delivered to each other certificates dated as of the Closing
Date and executed by such parties stating that, to their Best Knowledge, no
such items exist. No governmental authority shall have taken any other action
as a result of which the management of any of the parties, in its sole
discretion, reasonably deems it inadvisable to proceed with the transactions
contemplated by this Agreement.
(g) NO MATERIAL ADVERSE CHANGE. No material adverse change in the
business, property or assets of any party hereto shall have occurred, and no
loss or damage to any of the assets, whether or not covered by insurance, with
respect to any party hereto has occurred, and the parties shall have delivered
to each other certificates dated as of the Closing Date and executed by each
of the parties to all such effects.
(h) UPDATE OF CONTRACTS. The parties shall have delivered to each
other an accurate list, as of the Closing Date, showing (i) all agreements,
contracts and commitments of the type listed on Exhibits 8.20 and 10.13
entered into since the date of this Agreement; and (ii) all other agreements,
contracts and commitments related to the businesses or the assets of the
respective parties entered into since the date of this Agreement, together
with true, complete and accurate copies of all such documents (the "New
Contracts"). Each party shall have had the opportunity to review the New
Contracts of the other, and any of the parties shall have the right to delay
the Closing for up to ten (10) days if it in its sole discretion deems such
delay necessary to enable it to adequately review the New Contracts.
(i) APPROVAL OF COUNSEL. All actions, proceedings, instruments and
documents required or incidental to carry out this Agreement, including all
schedules and exhibits thereto, and all other related legal matters shall have
been approved as to substance and form by Xxxxxx & Xxxxxxx, LLC, counsel to
RV, and Krys, Boyle, Xxxxxxxx & Xxxxxx, counsel to Southshore.
(j) NO ADVERSE INFORMATION. The investigations with respect to the
parties, the assets and their respective businesses performed by each party's
respective professional advisors and other representatives shall not have
revealed any information concerning the other panes, their assets or their
business that has not been made known to the discovering party, in writing
prior to the date of this Agreement and that, in the opinion of such party and
its advisors, materially and adversely affects the business or assets of the
other party or the viability of the transaction contemplated by this
Agreement.
(k) ORDINARY COURSE OF BUSINESS. During the period from the date
of this Agreement until the Closing Date, Southshore shall have carried on its
business in the ordinary and usual course, and shall have delivered to RV a
certificate to that effect.
(1) OTHER DOCUMENTS. The parties shall have delivered or caused to
be delivered all other documents, agreements, resolutions, certificates or
declarations as each respective party or its attorneys may have reasonably
requested.
(m) GOVERNMENTAL AND REGULATORY APPROVALS. The parties shall have
obtained evidence, in form and substance satisfactory to each of them, that
there have been obtained all consents, approvals and authorizations required
by this Agreement, including, without limitation, the following:
(i) RV Stockholder approval of all the transactions
contemplated pursuant to this Agreement; and
(ii) All regulatory approvals necessary for RV to conduct
business in the ordinary course in each jurisdiction where
such approval may be required.
(n) DISSENTING SHAREHOLDERS. All validly dissenting RV
Shareholders shall have been paid, or provision made therefor, or the number
of dissenting shares of RV Common Stock does not exceed two percent (2%) of
the RV Common Shares.
(o) AUDIT CONFIRMATION. The parties recognize that, in order to
comply with the reporting requirements of the Exchange Act, it will be
necessary for Southshore to prepare and file with the Commission a Current
Report on Form 8-K which must include the audited financial statements of RV
and pro forma financial information in accordance with Item 7 of Form 8-K.
Prior to Closing, RV shall have received confirmation from its independent
accountants that the books and records of RV will permit the preparation by RV
of audited financial statements, together with report of independent public
accountants, in conformity with generally accepted accounting principles
consistently applied and in compliance with all requirements of Regulation SX
under the Securities Act.
(p) FEDERAL AND STATE SECURITIES LAWS. The sale and/or issuance of
Southshore securities pursuant to the Merger shall be exempt from registration
under state and federal securities laws.
(q) SHAREHOLDER OPTIONS. At Closing, certain shareholders of
Southshore shall have granted options to persons designated by RV exercisable
for ninety (90) days to purchase an aggregate of 500,000 shares of Southshore
Common Stock at an exercise price of $.50 per share.
(r) NET WORTH AND SHARES OUTSTANDING. At Closing, Southshore shall
have Net Worth of not less than One Hundred Thousand Dollars ($100,000) and no
more than 2,610,470 shares of Common Stock outstanding.
(s) RESALE AGREEMENTS. At Closing, Xxx Xxxxxx and Xxxxxxx XxXxxxxx
should have executed and delivered their agreements to limit their resales of
Southshore common stock in market transactions upon terms acceptable to RV.
7.4 SPECIFIC ITEMS TO BE DELIVERED AT THE CLOSING. The parties shall
deliver the following items to the appropriate party at the Closing of the
transactions contemplated by this Agreement.
(a) To be delivered by RV (in duplicate original):
(i) Copy of corporate resolutions authorizing the
execution of this Agreement, and the consummation by RV
of the transactions contemplated by this Agreement.
(ii) A certificate of the President of RV staring
that the representations and warranties of RV set forth
in this Agreement are true and correct. Said certificate
shall further verify and affirm that all consents or
waivers, if any, which may be necessary to execute and
deliver this Agreement have been obtained and are in full
force and effect.
(iii) A certificate dated the Closing Date, signed by the Chief
Executive Officer and the Chief Financial Officer of RV,
in form and substance satisfactory to the other party and
its legal counsel, certifying that all conditions
precedent set forth in this Agreement to the obligations
of RV to close, have been fulfilled, and that no event of
default hereunder and no event which, with the giving of
notice or passage of time, or both, would be an event of
default, has occurred as of such date.
(iv) Certificates dated the Closing Date, signed by the
Secretary of RV, (i) certifying resolutions duly adopted
by the Board of Directors and Shareholders of RV,
authorizing the execution of this Agreement and all of the
other transactions to be consummated pursuant thereto;
(ii) certifying the names and incumbency of the officers
of RV who are empowered to execute the foregoing documents
for and on behalf of such company; (iii) certifying the
authenticity of copies of the Articles of Incorporation
and Bylaws of RV; and (iv) certifying the authenticity of
a reasonably current Certificate of Good Standing, from
all jurisdictions in which the company is qualified to
conduct business.
(b) To be delivered by Shareholders of RV (in duplicate original):
(i) Certificate or certificates representing 100% of the
issued and outstanding common shares of RV, which stock
certificates shall be endorsed in favor of Southshore.
(ii) Fully executed Subscription Agreements from all
shareholders of record of RV substantially in the form of
Exhibit 4.3.
(iii) Assignments, if any, with unconditional warranties of
title, duly executed by Shareholders, assigning to
Southshore any and all equity rights, including, but not
limited to, options, warrants, puts and so forth, which
Shareholders may own in RV at the time of Closing.
(iv) Certificate of Shareholders in which they state that they
own the shares and other rights of RV free and clear of
all liens, encumbrances, security interests and
limitations on transfer whatsoever.
(c) To be delivered by Southshore (in duplicate original):
(i) Certificate or certificates representing 5,500,000 shares
of Southshore Common Stock, which stock certificates shall
be issued in the names of each Shareholder in the numbers
set forth in Section 4.1 hereof;
(ii) Copy of corporate resolution authorizing the
execution of this Agreement and the consummation by
Southshore and SAC of the transactions contemplated by
this Agreement, including, but not limited to, the
issuance of Southshore Common Stock in the amounts and
manner set forth in Section 4.1 above;
(iii) A certificate dated the Closing Date, signed by the Chief
Executive Officer and the Chief Financial Officer of
Southshore and SAC, in form and substance satisfactory to
the other party and its legal counsel, certifying that all
conditions precedent set forth in this Agreement to the
obligations of Southshore and SAC to close, have been
fulfilled, and that no event of default hereunder and no
event which, with the giving of notice or passage of time,
or both, would be an event of default, has occurred as of
such date.
(iv) Certificates dated the Closing Date, signed by the
Secretary of Southshore and SAC, (i) certifying
resolutions duly adopted by the Board of Directors of
Southshore and SAC, authorizing the execution of this
Agreement and all of the other transactions to be
consummated pursuant thereto; (ii) certifying the names
and incumbency of the officers of Southshore and SAC who
are empowered to execute the foregoing documents for and
on behalf of such company; (iii) certifying the
authenticity of copies of the Articles of Incorporation
and Bylaws of Southshore and SAC; and (iv) certifying the
authenticity of a reasonably current Certificate of Good
Standing, from all jurisdictions in which Southshore
and SAC are qualified to conduct business.
SECTION 8: REPRESENTATIONS AND WARRANTIES OF SOUTHSHORE
Southshore represents and warrants as follows:
8.1 ORGANIZATION AND STANDING. Southshore is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Colorado and has all requisite corporate power and authority to own their
assets and properties and to carry on their businesses as they are now being
conducted.
8.2 SUBSIDIARIES, ETC. SAC will prior to Closing be a subsidiary of and
wholly owned by Southshore, a Colorado. Other than its ownership interest in
SAC, Southshore has no direct or indirect ownership interest in any
corporation, partnership, joint venture, association or other business
enterprise. SAC will not have any direct or indirect ownership interest in
any corporation, partnership, joint venture, association or other business
enterprise, and, at the Effective Time, will have no assets and no
liabilities.
8.3 QUALIFICATION. Southshore is not qualified to engage in business as
foreign corporations in any state, and there is no other jurisdiction wherein
the character of the properties presently owned by Southshore or the nature of
the activities presently conducted by Southshore and SAC make necessary the
qualification, licensing or domestication of Southshore as foreign
corporations.
8.4 FINANCIAL STATEMENTS. The following financial statements have been
filed with the Commission:
(a) Audited financial statements of Southshore accompanied by
a report of its independent certified public accountants containing audited
balance sheets of Southshore for the periods ending March 31, 1999, 1998 and
1997, together with statements of operations and cash flows for Southshore for
the three year period ending March 31, 1999 on Form 10-K; and
(b) Unaudited financial statements of Southshore containing
balance sheets and statements of operations for Southshore at June 30, 1999
and September 30, 1999 on Form 10-Q.
To the Best Knowledge of Southshore, such financial statements, together
with and subject to the disclosures and notes thereto, (i) are in accordance
with the books and records of Southshore; (ii) present fairly and accurately
the financial condition of Southshore; as of the dates of the balance sheets;
(iii) present fairly and accurately the results of operations for the periods
covered by such statements; (iv) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis; (v)
include all adjustments (consisting of only normal recurring accruals) which
are necessary for a fair presentation of the financial condition of
Southshore, and of the results of operations of Southshore for the periods
covered by such statements; and (vi) fully comply with all requirements of
Regulation SK and all applicable securities laws.
As of the date hereof, and as of Closing, Southshore does not have any
liabilities or payables (absolute or contingent, known or unknown) except for
liabilities or payables set forth on Southshore's financial statements or
otherwise disclosed in writing by Southshore, or except for liabilities and
payables incurred in the ordinary course of business.
8.5 CAPITALIZATION OF SOUTHSHORE. The authorized capital stock of
Southshore consists entirely of 100,000,000 shares common stock having a par
value of $.001 per share. As of the date of this Agreement, 2,610,470 shares
of common stock are issued and outstanding, and there are no preferred shares
issued and outstanding. All outstanding shares of Southshore's capital stock
have been validly issued and are fully paid and nonassessable. Except as set
forth in its latest Form 10-K, there are no other equity securities of
Southshore authorized, issued or outstanding, and there are no authorized,
issued or outstanding subscriptions, options, warrants, contracts, calls,
commitments or other purchase rights of any nature or character relating to
any of Southshore's capital stock, equity securities, debt or other securities
convertible into stock or equity securities of Southshore.
8.6 NO DEFAULTS. Except as set forth on the attached Exhibit 8.6, each
of the leases, contracts, agreements and insurance policies to which
Southshore is a party is in full force and effect as of the date hereof with
no material defaults existing thereunder.
8.7 TAXES. Except as set forth in Exhibit 8.7, Southshore has filed (or
has obtained extensions for filing) all income, excise, sales, corporate
franchise, property, payroll and other tax returns or reports required to be
filed by it, as of the date hereof by the United States of America, any state
or other political subdivision thereof or any foreign country and has paid all
Taxes or assessments relating to the time periods covered by such returns or
reports. The amounts set up as provisions for Taxes in the Latest Financial
Statements are sufficient for the payment of all unpaid federal, foreign,
state or local Taxes of Southshore accrued for or applicable to all periods
ended on or prior to the date of this Agreement, or which may subsequently be
determined to be owing by Southshore with respect to all periods ending on or
prior to the Closing date, subject to normal year-end adjustments, which will
not be material. There are no present disputes as to Taxes of any nature
payable by Southshore.
8.8 NO ACTIONS. PROCEEDINGS, ETC. Except as listed on the attached
Exhibit 8.8, there is no action or proceeding (whether or not purportedly on
behalf of Southshore) pending or threatened by or against Southshore, nor does
there exist any basis therefor, which might result in any material adverse
change in the condition, financial or otherwise, of Southshore's business or
assets. No order, writ or injunction or decree has been issued by, or
requested of any court or governmental agency which does nor may result in any
material adverse change in Southshore's assets or properties or in the
financial condition or the business of Southshore. Southshore is not liable
for damages to any employee or former employee as a result of any violation of
any state, federal or foreign laws directly or indirectly relating to such
employee or former employee.
8.9 POST BALANCE SHEET CHANGES. Except as set forth on the attached
Exhibit 8.9, since the date of the latest financial statements through the
date of this Agreement, Southshore has not without the prior written consent
of RV, (a) issued, bought, redeemed or entered into any agreements,
commitments or obligations to sell, buy or redeem any shares of its capital
stock; (b) incurred any obligation or liability (absolute or contingent),
other than current liabilities incurred, and obligations under contracts
entered into, in the ordinary course of business; (c) discharged or satisfied
any lien or encumbrance or paid any obligation or liability (absolute or
contingent), other than current liabilities incurred in the ordinary course of
business; (d) mortgaged, pledged or subjected to lien charges, or other
encumbrance any of its assets, other than the lien of current or real property
taxes not yet due and payable; (e) waived any rights of substantial value,
whether or not in the ordinary course of business; (f) suffered any damage,
destruction or loss, whether or not covered by insurance, materially and
adversely affecting its assets or its business; (g) made or suffered any
amendment or termination of any material contract or any agreement which
adversely affects its business; (h) received notice or had knowledge of any
labor trouble other than routine grievance matters, none of which is material;
(i) increased the salaries or other compensation of any of its directors,
officers or employees or made any increase in other benefits to which
employees may be entitled, other than employee salary increases made in the
ordinary course of business; (j) sold, transferred or otherwise disposed of
any of its assets, other than in the ordinary course of business; (k) declared
or made any distribution or payments to any of its shareholders, officers or
employees, other than wages and salaries made to employees in the ordinary
course of business; (1) revalued any of its assets; or (m) entered into any
transactions not in the ordinary course of business.
8.10 NO BREACHES. Southshore is not in violation of, and the
consummation of the transactions contemplated hereby do not and will not
result in any material breach of, any of the terms or conditions of any
mortgage, bond, indenture, agreement, contract, license or other instrument or
obligation to which Southshore is a party or by which its assets are bound;
nor will the consummation of the transactions contemplated hereby cause
Southshore to violate any statute, regulation, judgment, writ, injunction or
decree of any court, threatened or entered in a proceeding or action in which
Southshore is, was or may be bound or to which any of Southshore's assets are
subject.
8.11 CONDITION OF SOUTHSHORE'S ASSETS. Southshore's assets are currently
in good and usable condition and there are no defects or other conditions
which, in the aggregate, materially and adversely affect the operation or
values of such assets. Except as disclosed on the attached Exhibit 8.11, no
third party (including any officer or employee of Southshore) has any
proprietary interest in any know-how or other intangible assets used by
Southshore in the conduct of its business. All product which is currently
being marketed by Southshore is operable for its intended purposes in
accordance with its written specifications and trade representations.
8.12 INVENTORY. Except as otherwise set forth on Exhibit 8.12, all
inventories reflected in Southshore's latest financial statements in excess of
the reserves for excess or obsolete inventories are stated at the lowest of
cost, replacement cost or market, and, as so stated, are in good condition and
usable or salable in the category in which they are inventoried, in the
ordinary course of business of Southshore, without discounts other than normal
trade discounts regularly offered by Southshore, for prompt payment or
quantity purchase.
8.13 ACCOUNTS RECEIVABLE. The accounts receivable of Southshore
represent valid and enforceable obligations due to Southshore, and, except to
the extent of the reserve reflected in the latest financial statements, to the
Best Knowledge of Southshore shall be collectible by Southshore in the
ordinary course of business. Except as set forth on the attached Exhibit
8.13, Southshore has not received any notice of any material counterclaim or
set-off with respect to such accounts receivable.
8.14 SOUTHSHORE ACTS AND PROCEEDINGS. This Agreement has been duly
authorized by all necessary corporate action on behalf of Southshore, has been
duly executed and delivered by authorized officers of Southshore, and is a
valid and binding Agreement on the part of Southshore that is enforceable
against Southshore in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium, reorganization
or other similar laws affecting the enforcement of creditors' rights generally
and to judicial limitations on the enforcement of the remedy of specific
performance and other equitable remedies. All corporate action necessary to
issue and deliver to the shareholders of RV the Southshore Stock (as described
in Section 4) has been taken by Southshore.
8.15 PATENTS AND OTHER INTANGIBLE RIGHTS. Except as disclosed on Exhibit
8.15, Southshore (a) owns or has the exclusive right to use, free and clear of
all material liens, claims and restrictions, all patents, trademarks, service
marks, trade names, copyrights, licenses and rights with respect to the
foregoing, used in the conduct of its business as now conducted without
infringing upon or otherwise acting adversely to the right or claimed right of
any person under or with respect to any of the foregoing; (b) is not obligated
or under any liability whatsoever to make any payments of a material nature by
way of royalties, fees or otherwise to any owner of, licensor of, or other
claimant to, any patent, trademark, tradename, copyright or other intangible
asset, with respect to the use thereof or in connection with the conduct of
its business or otherwise; (c) owns or has the unrestricted right to use all
trade secrets, including know-how, customer lists, inventions, designs,
processes, computer programs and technical data necessary to the development,
operation and sale of all products and services sold or proposed to be sold by
it, free and clear of any rights, liens or claims of others; and (d) is not
using any confidential information to trade secrets of others.
8.16 CHANGES IN SUPPLIERS AND CUSTOMERS. Except as disclosed on Exhibit
8.16, Southshore is not aware of any fact which indicates that any of the
suppliers supplying products, components or materials to Southshore intends to
cease selling such products to Southshore nor is Southshore aware of any fact
which indicates that any major customer of Southshore intends to terminate its
business relations with Southshore.
8.17 NO LIENS OR ENCUMBRANCES. Southshore has good and marketable title
to all of the property and assets, tangible and intangible, employed in the
operations of its business, free of any material mortgages, security
interests, pledges, easements or encumbrances of any kind whatsoever except as
set forth on the attached Exhibit 8.17 and except for such property and assets
as may be leased by Southshore.
8.18 EMPLOYEE MATTERS. Xxx Xxxxxx and Xxxx Xxxxxx are the only employees
of Southshore. They intend to terminate their employment relationship with
Southshore on the Closing Date, without further liability of Southshore.
Except as specifically described on Exhibit 8.18, Southshore has no employee
benefit plans (including, but not limited to, pension plans and health or
welfare plans), arrangements or understandings, whether formal or informal.
Southshore does not now and has never contributed to a "multi-employer plan"
as defined in Section 400(a)(3) of the Employee Retirement Income Securities
Act of 1934, as amended ("ERISA"). Southshore has complied with all applicable
provisions of ERISA and all rules and regulations promulgated thereunder, and
neither Southshore nor any trustee, administrator, fiduciary, agent or
employee thereof has at any time been involved in a transaction that would
constitute a "prohibited transaction" within the meaning of Section 406 of
ERISA as to any covered plan of Southshore. Southshore is not a party to any
collective bargaining or other union agreement. Southshore has not, within the
past five (5) years had, or been threatened with, any union activities, work
stoppages or other labor trouble with respect to its employees which had or
might have had a material adverse effect on Southshore or SAC, their
businesses or assets. Except as disclosed on Exhibit 8.18, within the twelve
(12) months prior to and since the date of the financial statements provided
for in this Agreement, Southshore has not made any commitment or agreements to
increase the wages or modify the conditions or terms of employment of any of
the employees of Southshore used in connection with its business, and between
the date of this Agreement and the Closing Date, neither Southshore or SAC
will make any agreement to increase the wages or modify the conditions or
terms of employment of any of the employees of Southshore or SAC respectively,
without the prior written consent of all parties hereto.
8.19 LEGAL PROCEEDINGS AND COMPLIANCE WITH LAW. Except as set forth in
Exhibits 8.4, 8.6, 8.7, 8.8, 8.9, 8.10, 8.13 or 8.19, there is no legal,
administrative, arbitration or other proceeding or governmental investigation
pending or threatened (including those relating to the health, safety,
employment of labor, or protection of the environment) pertaining to
Southshore which might result in the aggregate in money damages payable by
Southshore in excess of insurance coverage or which might result in a
permanent injunction against Southshore. Except as set forth in such Exhibits,
Southshore has substantially complied with, and is not in default in any
respect under any laws, ordinances, requirements, regulations, or orders
applicable to the business of Southshore, the violation of which might
materially and adversely affect it. Except as set forth in such Exhibits,
Southshore is not a party to any agreement or instrument, nor is it subject to
any charter or other corporate restriction or any judgment, order, writ,
injunction, decree, rule, regulation, code or ordinance which materially and
adversely affects, or might reasonably be expected materially and adversely to
affect the business, operations, prospects, property, assets or condition,
financial or otherwise, of Southshore.
8.20 CONTRACT SCHEDULES. Attached as Exhibits 8.20(a) to 8.20(f) hereto
are an accurate list and summary description of the following:
(a) All contracts, leases, agreements, covenants, licenses,
instruments or commitments of Southshore pertaining to the business of
Southshore calling for the payment of $5,000 or more or which is otherwise
material to the business of Southshore, including, without limitation, the
following:
(i) Executory contracts for the manufacture and sale of
products;
(ii) Executory contracts for the purchase sale or lease of any
assets;
(iii) Management or consulting contracts;
(iv) Patent, trademark and copyright applications,
registrations or licenses, and know-how, intellectual
property and trade secret agreements or other licenses;
(v) Note agreements, loan agreements, indentures and the like,
other than those entered into and executed in the ordinary
course of business;
(vi) All sales, agency, distributorship or franchise
agreements; and
(vii) Any other contracts not in the ordinary course of
business.
(b) All labor contracts, employment agreements and collective
bargaining agreements related to Southshore.
(c) All instruments evidencing any liens or security interest
securing any indebtedness of Southshore covering any asset of Southshore.
(d) A listing generally describing all computer programs and
related software proprietary to Southshore, and all management proprietary
systems utilized by Southshore in its operations.
(e) All profit sharing, pension, stock option, severance pay,
retirement, bonus, deferred compensation, group life and health insurance or
other employee benefit plans, agreements, arrangements or commitments of any
nature whatsoever, whether or not legally binding, and all agreements with any
present or former officer, director or shareholder of Southshore.
(f) Any and all documents, instruments and other writings not
listed in any other schedule hereto which are material to the business
operations of Southshore.
Except as set forth in Exhibit 8.20(f), all of such contracts,
agreements, leases, licenses, plans, arrangements and commitments and all
other such items set forth above are valid, binding and in full force and
effect in accordance with their terms and conditions, and there is no existing
default thereunder or breach thereof by Southshore, or by any party to such
contracts, or any conditions which, with the passage of time or the giving of
notice or both, might constitute such a default by Southshore or by any other
party to the contracts.
8.21 LABOR MATTERS. There are no strikes, slowdowns, stoppages,
organizational efforts, discrimination charges or other labor disputes pending
or, to the knowledge of Southshore or any of its agent or employees,
threatened against Southshore.
8.22 INSURANCE. Southshore maintains in full force and effect insurance
coverage on its assets and business in such amounts and against such risks and
losses as set forth in Exhibit 8.22.
8.23 ENVIRONMENTAL. Except as disclosed on Exhibit 8.23, and except for
normal office and consumer products utilized in the ordinary course of
business, the conduct and operation of the business of Southshore has not and
does not:
(a) Involve or require the storage, disposal, generation,
manufacture, refinement, transportation, production or treatment of toxic
wastes, hazardous wastes, or hazardous substances;
(b) Resulted in any spill, discharge, leak, emission, injection,
escape, dumping, or release of any kind onto the business premises, or into
the environment surrounding the business premises, of any toxic wastes or
hazardous substances; or
(c) Involve or require the treatment, collection, storage or
disposal of any refuse or objectionable wastes so as to require a permit or
approval from the United States Environmental Protection Agency, or otherwise
subject to the regulation of the United States Environmental Protection Agency
or any state regulatory agency. The terms "hazardous wastes" and "hazardous
substances" shall have the meaning specified by any applicable local, state,
or federal statute or regulation concerning or governing water pollution,
groundwater protection, air pollution, solid wastes, hazardous wastes, spills,
and other releases of toxic or hazardous substances, transportation of
hazardous substances, materials, and wastes and occupational or employee
health and safety.
8.24 COMPLIANCE WITH REPORTING REQUIREMENTS. Southshore represents,
warrants and agrees that, as of the date of Closing, Southshore has filed all
forms, reports and documents with the Securities and Exchange Commission (the
"Commission") required to be filed by it pursuant to the Securities Act and
the Exchange Act, including, without limitation, all reporting requirements of
13(a) of the Exchange Act. The reports filed with the Commission, to
Southshore's Best Knowledge, did not contain, as of their respective dates,
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
SECTION 9: COVENANTS OF SOUTHSHORE AND SAC
9.1 PRESERVATION OF BUSINESS. Until Closing, Southshore shall use its
best efforts to:
(a) preserve intact the present business organization of
Southshore;
(b) maintain its property and assets in its present state of
repair, order and condition, reasonable wear and tear excepted;
(c) preserve and protect the goodwill and advantageous
relationships of Southshore with its customers and all other persons having
business dealings with Southshore;
(d) preserve and maintain in force all licenses, permits,
registrations, franchises, patents, trademarks, tradenames, trade secrets,
service marks, copyrights, bonds and other similar rights of Southshore; and
(e) comply with all laws applicable to the conduct of its business
9.2 ORDINARY COURSE. Southshore shall conduct its business only in the
usual, regular and ordinary course, in substantially the same manner as
previously, and shall not make any substantial change to its methods of
management or operation in respect of such business or property. Without
limiting the foregoing, Southshore shall not:
(a) sell, mortgage, pledge or encumber or agree to sell, mortgage,
pledge or encumber, any of its property or assets;
(b) incur any obligation (contingent or otherwise) or purchase,
acquire, transfer, or convey, any material assets or property or enter into
any contract or commitment;
(c) discuss, solicit negotiate, enter into an agreement concerning
any merger, consolidation or sale of all or substantially all of its assets
except as contemplated by this Agreement.
9.3 NEGATIVE COVENANTS. From the date hereof until the Closing date,
unless and until RV otherwise consents in writing, Southshore will not (a)
change or alter the physical contents or character of the inventories of its
business, so as to materially affect the nature of Southshore's business or
materially and adversely change the total dollar valuation of such inventories
from that reflected on the financial statements referred to in Section 8.4
other than in the ordinary course of business; (b) incur any obligations or
liabilities (absolute or contingent) other than current liabilities incurred
and obligations under contracts entered into in the ordinary course of
business; (c) mortgage, pledge or voluntarily subject to lien, charge or other
encumbrance any assets, tangible or intangible, other than the lien of current
property taxes not due and payable; (d) sell, assign or transfer any of its
assets or cancel any debts or claims, other than in the ordinary course of
business; (e) waive any right of any substantial value; (f) declare or make
any payment or distribution to shareholders or issue, purchase or redeem any
shares of its capital stock or other equity securities or issue or sell any
rights to acquire the same; (g) grant any increase in the salary or other
compensation of any of its directors, officers, or employees or make any
increase in any benefits to which such employees might be entitled; (h)
institute any bonus, benefit, profit sharing, stock option, pension,
retirement plan or similar arrangement, or make any changes in any such plans
or arrangements presently existing; or (i) enter into any transactions or
series of transactions other than in the ordinary course of business.
9.4 ACCESS TO BOOKS AND RECORDS. Premises, etc. From the date of this
Agreement through the Closing date, Southshore will grant RV and its
authorized representatives access to its books and records, premises,
products, employees and customers and other parties with whom it has
contractual relations during reasonable business hours for purposes of
enabling RV to fully investigate the business of Southshore. Southshore will
also deliver copies of its monthly statements of operations and financial
condition for the period subsequent to the latest financial statements to RV
as soon as such statements are available.
9.5 COMPENSATION. Southshore shall not enter into or agree to enter
into any employment contract or agreement for consulting, professional, or
other services which will adversely and materially affect the operation of
Southshore prior to the Closing Date.
SECTION 10: REPRESENTATIONS AND WARRANTIES OF RV
RV represents and warrants as follows:
10.1 ORGANIZATION AND STANDING. RV is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado
and has all requisite corporate power and authority to own its assets and
properties and to carry on its business as it is now being conducted.
10.2 SUBSIDIARIES, ETC. RV has no direct or indirect ownership interest
in any corporation, partnership, joint venture, association or other business
enterprise.
10.3 QUALIFICATION. RV is not qualified to engage in business as a
foreign corporation in any state, and there is no other jurisdiction wherein
the character of the properties presently owned by RV or the nature of the
activities presently conducted by RV make necessary the qualification,
licensing or domestication of RV as foreign corporations.
10.4 FINANCIAL STATEMENTS. The following statements will be prepared and
made a part of this Agreement within sixty (60) days following Closing as
Exhibit 10.4:
(a) Audited financial statements and pro forma financial
information of RV and its subsidiaries conforming to the requirements of Item
7 of Form 8-K under the Exchange Act.
To the Best Knowledge of RV, such financial statements, together with and
subject to the disclosures and notes thereto, (i) are in accordance with the
books and records of RV; (ii) present fairly and accurately the financial
condition of RV; as of the dates of the balance sheets; (iii) present fairly
and accurately the results of operations for the periods covered by such
statements; (iv) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis; (v) include all
adjustments (consisting of only normal recurring accruals) which are necessary
for a fair presentation of the financial condition of RV, and of the results
of operations of RV for the periods covered by such statements; and (vi) fully
comply with all requirements of all applicable securities laws. As of the date
hereof, and as of Closing, RV does not have any liabilities or payables
(absolute or contingent, known or unknown) except for liabilities or payables
set forth on RV's financial statements or otherwise disclosed in writing by
RV, or except for liabilities and payables incurred in the ordinary course of
business.
10.5 CAPITALIZATION OF RV. The authorized capital stock of RV consists
entirely of 100,000,000 shares of common stock having a par value of $.001 per
share and 50,000,000 shares of preferred stock having a par value of $.01 per
share. As of the Closing of the Merger, 5,500,000 shares of common stock and
no shares of preferred stock will be issued and outstanding. All outstanding
shares of RV's capital stock have been validly issued and are fully paid and
nonassessable. Except as set forth on Exhibit 10.5, there are no other equity
securities of RV authorized, issued or outstanding, and there are no
authorized, issued or outstanding subscriptions, options, warrants, contracts,
calls, commitments or other purchase rights of any nature or character
relating to any of RV's capital stock, equity securities, debt or other
securities convertible into stock or equity securities of RV.
10.6 NO DEFAULTS. Except as set forth on the attached Exhibit 10.6, each
of the leases, contracts, agreements and insurance policies to which RV is a
party is in full force and effect as of the date hereof with no material
defaults existing thereunder.
10.7 TAXES. Except as set forth in Exhibit 10.7, RV has filed (or has
obtained extensions for filing) all income, excise, sales, corporate
franchise, property, payroll and other tax returns or reports required to be
filed by it, as of the date hereof by the United States of America, any state
or other political subdivision thereof or any foreign country and has paid all
Taxes or assessments relating to the time periods covered by such returns or
reports. The amounts set up as provisions for Taxes in the Latest Financial
Statements are sufficient for the payment of all unpaid federal, foreign,
state or local Taxes of RV accrued for or applicable to all periods ended on
or prior to the date of this Agreement, or which may subsequently be
determined to be owing by RV with respect to all periods ending on or prior to
the Closing date, subject to normal year-end adjustments, which will not be
material. There are no present disputes as to Taxes of any nature payable by
RV.
10.8 NO ACTIONS, PROCEEDINGS, ETC. Except as listed on the attached
Exhibit 10.8, there is no action or proceeding (whether or not purportedly on
behalf of RV) pending or threatened by or against RV, nor does there exist any
basis therefor, which might result in any material adverse change in the
condition, financial or otherwise, of RV's business or assets. No order, writ
or injunction or decree has been issued by, or requested of any court or
governmental agency which does nor may result in any material adverse change
in RV's assets or properties or in the financial condition or the business of
RV. RV is not liable for damages to any employee or former employee as a
result of any violation of any state, federal or foreign laws directly or
indirectly relating to such employee or former employee.
10.9 POST BALANCE SHEET CHANGES. Except as set forth on the attached
Exhibit 10.9, since the date of the latest financial statements through the
date of this Agreement, RV has not without the prior written consent of
Southshore and SAC, (a) issued, bought, redeemed or entered into any
agreements, commitments or obligations to sell, buy or redeem any shares of
its capital stock; (b) incurred any obligation or liability (absolute or
contingent), other than current liabilities incurred, and obligations under
contracts entered into, in the ordinary course of business; (c) discharged or
satisfied any lien or encumbrance or paid any obligation or liability
(absolute or contingent), other than current liabilities incurred in the
ordinary course of business; (d) mortgaged, pledged or subjected to lien
charges, or other encumbrance any of its assets, other than the lien of
current or real property taxes not yet due and payable; (e) waived any rights
of substantial value, whether or not in the ordinary course of business; (f)
suffered any damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting its assets or its business; (g) made or
suffered any amendment or termination of any material contract or any
agreement which adversely affects its business; (h) received notice or had
knowledge of any labor trouble other than routine grievance matters, none of
which is material; (i) increased the salaries or other compensation of any of
its directors, officers or employees or made any increase in other benefits to
which employees may be entitled, other than employee salary increases made in
the ordinary course of business; (j) sold, transferred or otherwise disposed
of any of its assets, other than in the ordinary course of business; (k)
declared or made any distribution or payments to any of its shareholders,
officers or employees, other than wages and salaries made to employees in the
ordinary course of business; (1) revalued any of its assets; or (m) entered
into any transactions not in the ordinary course of business.
10.10 NO BREACHES. RV is not in violation of, and the consummation of
the transactions contemplated hereby do not and will not result in any
material breach of, any of the terms or conditions of any mortgage, bond,
indenture, agreement, contract, license or other instrument or obligation to
which RV is a party or by which its assets are bound; nor will the
consummation of the transactions contemplated hereby cause RV to violate any
statute, regulation, judgment, writ, injunction or decree of any court,
threatened or entered in a proceeding or action in which RV is, was or may be
bound or to which any of RV's assets are subject.
10.11 CONDITION OF RV'S ASSETS. RV's assets are currently in good and
usable condition and there are no defects or other conditions which, in the
aggregate, materially and adversely affect the operation or values of such
assets. Except as disclosed on the attached Exhibit 10.11, no third party
(including any officer or employee of RV) has any proprietary interest in any
know-how or other intangible assets used by RV in the conduct of its business.
All product which is currently being marketed by RV is operable for its
intended purposes in accordance with its written specifications and trade
representations.
10.12 INVENTORY. Except as otherwise set forth on Exhibit 10.12, all
inventories reflected in RV's latest financial statements in excess of the
reserves for excess or obsolete inventories are stated at the lowest of cost,
replacement cost or market, and, as so stated, are in good condition and
usable or salable in the category in which they are inventoried, in the
ordinary course of business of RV, without discounts other than normal trade
discounts regularly offered by RV, for prompt payment or quantity purchase.
10.13 ACCOUNTS RECEIVABLE. The accounts receivable of RV represent valid
and enforceable obligations due to RV, and, except to the extent of the
reserve reflected in the latest financial statements, to the Best Knowledge of
RV shall be collectible by RV in the ordinary course of business. Except as
set forth on the attached Exhibit 10.13, Southshore has not received any
notice of any material counterclaim or set-off with respect to such accounts
receivable.
10.14 RV ACTS AND PROCEEDINGS. This Agreement has been duly authorized by
all necessary corporate action on behalf of RV, has been duly executed and
delivered by authorized officers of RV, and is a valid and binding Agreement
on the part of RV that is enforceable against RV in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and to judicial limitations on the enforcement of
the remedy of specific performance and other equitable remedies. All
corporate action necessary to issue and deliver to the shareholders of
Southshore the RV (as described in Section 4) has been taken by RV.
10.15 PATENTS AND OTHER INTANGIBLE RIGHTS. Except as disclosed on Exhibit
10.15, RV (a) owns or has the exclusive right to use, free and clear of all
material liens, claims and restrictions, all patents, trademarks, service
marks, trade names, copyrights, licenses and rights with respect to the
foregoing, used in the conduct of its business as now conducted without
infringing upon or otherwise acting adversely to the right or claimed right of
any person under or with respect to any of the foregoing; (b) is not obligated
or under any liability whatsoever to make any payments of a material nature by
way of royalties, fees or otherwise to any owner of, licensor of, or other
claimant to, any patent, trademark, tradename, copyright or other intangible
asset, with respect to the use thereof or in connection with the conduct of
its business or otherwise; (c) owns or has the unrestricted right to use all
trade secrets, including know-how, customer lists, inventions, designs,
processes, computer programs and technical data necessary to the development,
operation and sale of all products and services sold or proposed to be sold by
it, free and clear of any rights, liens or claims of others; and (d) is not
using any confidential information to trade secrets of others.
10.16 CHANGES IN SUPPLIERS AND CUSTOMERS. Except as disclosed on Exhibit
10.16, Southshore is not aware of any fact which indicates that any of the
suppliers supplying products, components or materials to RV intends to cease
selling such products to Southshore nor is Southshore aware of any fact which
indicates that any major customer of RV intends to terminate its business
relations with RV.
10.17 NO LIENS OR ENCUMBRANCES. RV has good and marketable title to all
of the property and assets, tangible and intangible, employed in the
operations of its business, free of any material mortgages, security
interests, pledges, easements or encumbrances of any kind whatsoever except as
set forth on the attached Exhibit 10.17 and except for such property and
assets as may be leased by RV.
10.18 LEGAL PROCEEDINGS AND COMPLIANCE WITH LAW. Except as set forth in
Exhibits 10.4, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.13, 10.14,
10.15, 10.16, 10.17 or 10.18, there is no legal, administrative, arbitration
or other proceeding or governmental investigation pending or threatened
(including those relating to the health, safety, employment of labor, or
protection of the environment) pertaining to RV which might result in the
aggregate in money damages payable by RV in excess of insurance coverage or
which might result in a permanent injunction against RV. Except as set forth
in such Exhibits, RV has substantially complied with, and is not in default in
any respect under any laws, ordinances, requirements, regulations, or orders
applicable to the business of RV, the violation of which might materially and
adversely affect it. Except as set forth in such Exhibits, RV is not a party
to any agreement or instrument, nor is it subject to any charter or other
corporate restriction or any judgment, order, writ, injunction, decree, rule,
regulation, code or ordinance which materially and adversely affects, or might
reasonably be expected materially and adversely to affect the business,
operations, prospects, property, assets or condition, financial or otherwise,
of RV.
10.19 CONTRACT SCHEDULES. Attached as Exhibit 10.19 hereto is an accurate
list and summary description of the following:
(a) All contracts, leases, agreements, covenants, licenses,
instruments or commitments of RV pertaining to the business of RV calling for
the payment of $5,000 or more or which is otherwise material to the business
of RV, including, without limitation, the following:
(i) Executory contracts for the manufacture and sale of
products;
(ii) Executory contracts for the purchase sale or lease of any
assets;
(iii) Management or consulting contracts;
(iv) Patent, trademark and copyright applications,
registrations or licenses, and know-how, intellectual
property and trade secret agreements or other licenses;
(v) Note agreements, loan agreements, indentures and the like,
other than those entered into and executed in the ordinary
course of business;
(vi) All sales, agency, distributorship or franchise
agreements; and
(vii) Any other contracts not in the ordinary course of
business.
(b) All labor contracts, employment agreements and collective
bargaining agreements related to RV.
(c) All instruments evidencing any liens or security
interest securing any indebtedness of RV covering any asset of RV.
(d) A listing generally describing all computer programs and
related software proprietary to RV, and all management proprietary systems
utilized by RV in its operations.
(e) All profit sharing, pension, stock option, severance pay,
retirement, bonus, deferred compensation, group life and health insurance or
other employee benefit plans, agreements, arrangements or commitments of any
nature whatsoever, whether or not legally binding, and all agreements with any
present or former officer, director or shareholder of RV. Any and all
documents, instruments and other writings not listed in any other schedule
hereto which are material to the business operations of RV. Except as set
forth in Exhibit 10.19(f), all of such contracts, agreements, leases,
licenses, plans, arrangements and commitments and all other such items set
forth above are valid, binding and in full force and effect in accordance with
their terms and conditions, and there is no existing default thereunder or
breach thereof by RV, or by any party to such contracts, or any conditions
which, with the passage of time or the giving of notice or both, might
constitute such a default by RV or by any other party to the contracts.
10.20 LABOR MATTERS. There are no strikes, slowdowns, stoppages,
organizational efforts, discrimination charges or other labor disputes pending
or, to the knowledge of RV or any of its agent or employees, threatened
against RV.
10.21 INSURANCE. RV maintains in full force and effect insurance coverage
on its assets and business in such amounts and against such risks and losses
as set forth in Exhibit 10.21.
10.22 ENVIRONMENTAL. Except as disclosed on Exhibit 10.22, and except for
normal office and consumer products utilized in the ordinary course of
business, the conduct and operation of the business of RV has not and does
not:
(a) Involve or require the storage, disposal, generation,
manufacture, refinement, transportation, production or treatment of toxic
wastes, hazardous wastes, or hazardous substances;
(b) Resulted in any spill, discharge, leak, emission, injection,
escape, dumping, or release of any kind onto the business premises, or into
the environment surrounding the business premises, of any toxic wastes or
hazardous substances; or
(c) Involve or require the treatment, collection, storage or
disposal of any refuse or objectionable wastes so as to require a permit or
approval from the United States Environmental Protection Agency, or otherwise
subject to the regulation of the United States Environmental Protection Agency
or any state regulatory agency.
The terms "hazardous wastes" and "hazardous substances" shall have the
meaning specified by any applicable local, state, or federal statute or
regulation concerning or governing water pollution, groundwater protection,
air pollution, solid wastes, hazardous wastes, spills, and other releases of
toxic or hazardous substances, transportation of hazardous substances,
materials, and wastes and occupational or employee health and safety.
SECTION 11: COVENANTS OF RV
11.1 PRESERVATION OF BUSINESS. Until Closing, RV shall use its best
efforts to:
(a) preserve intact the present business organization of RV;
(b) maintain its property and assets in its present state of
repair, order and condition, reasonable wear and tear excepted;
(c) preserve and protect the goodwill and advantageous
relationships of RV with its customers and all other persons having business
dealings with RV;
(d) preserve and maintain in force all licenses, permits,
registrations, franchises, patents, trademarks, tradenames, trade secrets,
service marks, copyrights, bonds and other similar rights of RV; and
(e) comply with all laws applicable to the conduct of its business
11.2 ORDINARY COURSE. RV shall conduct its business only in the usual,
regular and ordinary course, in substantially the same manner as previously,
and shall not make any substantial change to its methods of management or
operation in respect of such business or property. Without limiting the
foregoing, RV shall not, with respect to RV:
(a) sell, mortgage, pledge or encumber or agree to sell, mortgage,
pledge or encumber, any of its property or assets;
(b) incur any obligation (contingent or otherwise) or purchase,
acquire, transfer, or convey, any material assets or property or enter into
any contract or commitment;
(c) discuss, solicit negotiate, enter into an agreement concerning
any merger, consolidation or sale of all or substantially all of its assets
except as contemplated by this Agreement.
11.3 NEGATIVE COVENANTS. From the date hereof until the Closing date,
unless and until Southshore and SAC otherwise consent in writing. RV will not
(a) change or alter the physical contents or character of the inventories of
its business, so as to materially affect the nature of RV's business or
materially and adversely change the total dollar valuation of such inventories
from that reflected on the financial statements referred to in Section 10.4
other than in the ordinary course of business; (b) incur any obligations or
liabilities (absolute or contingent) other than current liabilities incurred
and obligations under contracts entered into in the ordinary course of
business; (c) mortgage, pledge or voluntarily subject to lien, charge or other
encumbrance any assets, tangible or intangible, other than the lien of current
property taxes not due and payable; (d) sell, assign or transfer any of its
assets or cancel any debts or claims, other than in the ordinary course of
business; (e) waive any right of any substantial value; (f) declare or make
any payment or distribution to shareholders or issue, purchase or redeem any
shares of its capital stock or other equity securities or issue or sell any
rights to acquire the same; (g) grant any increase in the salary or other
compensation of any of its directors, officers, or employees or make any
increase in any benefits to which such employees might be entitled; (h)
institute any bonus, benefit, profit sharing, stock option, pension,
retirement plan or similar arrangement, or make any changes in any such plans
or arrangements presently existing; or (i) enter into any transactions or
series of transactions other than in the ordinary course of business.
11.4 ACCESS TO BOOKS AND RECORDS. Premises, etc. From the date of this
Agreement through the Closing date. RV will grant Southshore and SAC and their
authorized representatives access to its books and records, premises,
products, employees and customers and other parties with whom it has
contractual relations during reasonable business hours for purposes of
enabling Southshore and SAC to fully investigate the business of RV. RV will
also deliver copies of its monthly statements of operations and financial
condition for the period subsequent to the latest financial statements to
Southshore and SAC as soon as such statements are available.
11.5 COMPENSATION. RV shall not enter into or agree to enter into any
employment contract or agreement for consulting, professional, or other
services which will adversely and materially affect the operation of RV prior
to the Closing Date.
SECTION 12: TERMINATION
12.1 TERMINATION. This Agreement may be terminated and abandoned solely
as follows:
(a) At any time until the Closing Date by the mutual agreement of
the Board of Directors of RV, Southshore and SAC.
(b) FAILURE OF CONDITIONS. This Agreement may be terminated by
either party hereto, if the conditions, as set forth in this Agreement to such
terminating party's obligations under this Agreement are not fulfilled on or
prior to the Closing Date; provided that any such termination shall not limit
the remedies otherwise available to such party as a result of
misrepresentations of or breaches by the other party.
(c) MATERIAL BREACH. This Agreement may be terminated by either
party if the other party is in material breach or default of its respective
covenants, agreements or other obligations hereunder, or if any of its
representations and warranties herein are not true and accurate in all
material respects when made or when otherwise required by this Agreement to be
true and accurate.
(d) By either Southshore, SAC or RV, if for any reason the parties
have failed to close this Agreement on or before January 31, 2000, provided
that neither Southshore, SAC nor RV is then in default hereunder.
In the event of any termination pursuant to this Section 12.1 (other than
pursuant to subparagraph 12.1(a)), written notice setting forth the reasons
therefor shall forthwith be given by RV, if it is the terminating party, to
Southshore and SAC, or by Southshore or SAC, if either of them is the
terminating party, to RV.
12.2 EFFECT OF TERMINATION. If Terminated as provided for in this
Section, this Agreement shall forthwith become wholly void and of no effect,
except for the confidentiality obligations set forth in Section 14 hereof,
without liability to any party to this Agreement except for breach of this
Agreement.
SECTION 13: INDEMNIFICATION AND REMEDIES FOR BREACH
13.1 INDEMNIFICATION BY SOUTHSHORE AND SAC.
(a) Southshore and SAC shall defend, indemnify and hold RV harmless
against and in respect of any damage, loss, liability, cost or expense,
including expert witness fees and reasonable attorneys' fees, whether or not
recoverable under applicable state law, resulting or arising from or incurred
in connection with:
(i) any misrepresentation, breach of warranty, or
nonfulfillment or nonperformance of any agreement on the
part of Southshore or SAC under this Agreement, or any
misrepresentation or omission from any exhibit, schedule,
list, certificate or other instrument furnished or to be
furnished by them under this Agreement;
(ii) any and all liabilities of Southshore or SAC of any
nature whatsoever, whether accrued, absolute, contingent
or otherwise and whether known or unknown, except to the
extent that any such liability arises from RV's failure to
perform or discharge, when due. RV's future obligations;
and
(iii) any actions, suits, proceedings, damages, assessments,
judgments, costs or expenses incident to any of the
foregoing.
(b) Promptly after the receipt by RV of notice of any claim
asserted by a third party that may give rise to Southshore or SAC's liability
to RV under this Section, RV shall give to Southshore or SAC respectively
written notice of such claim, and Southshore or SAC shall be entitled to
participate at its own expense in the defense of any such claim. RV shall not
pay, acknowledge, compromise or settle any such claim without the written
consent of Southshore or SAC, unless such payment, acknowledgement, compromise
or settlement results in a full and complete release and discharge of
Southshore and SAC from any liability.
13.2 INDEMNIFICATION BY RV.
(a) RV shall defend, indemnify and hold Southshore and SAC harmless
against and in respect of any damage, loss, liability, cost or expense,
including expert witness fees and reasonable attorneys' fees, whether or not
recoverable under applicable state law, resulting or arising from or incurred
in connection with:
(i) any misrepresentation, breach of warranty, or
nonfulfillment or nonperformance of any agreement on the
part of RV under this Agreement, or any misrepresentation
or omission from any exhibit, schedule, list, certificate
or other instrument furnished or to be furnished by it
under this Agreement;
(ii) any and all liabilities of RV of any nature whatsoever,
whether accrued, absolute, contingent or otherwise and
whether known or unknown, except to the extent that any
such liability arises from Southshore or SAC's failure to
perform or discharge, when due, Southshore or SAC's future
obligations;
(iii) any actions, suits, proceedings, damages, assessments,
judgments, costs or expenses incident to any of the
foregoing.
(b) Promptly after the receipt by Southshore or SAC of notice of
any claim asserted by a third party that may give rise to RV's liability to
Southshore or SAC under this Section, Southshore or SAC shall give to RV
written notice of such claim and RV shall be entitled to participate at its
own expense in the defense of any such claim. Neither Southshore nor SAC shall
pay, acknowledge, compromise or settle any such claim without the written
consent of RV, unless such payment, acknowledgement, compromise or settlement
results in a full and complete release and discharge of RV from any liability.
13.3 ADDITIONAL NOTICE. Notwithstanding the provisions of Sections 13.1
or 13.2 above, promptly after the receipt by any party hereto of notice of any
claim asserted by a third party that may give rise to the liability of any
party for which the right to indemnification may be claimed under this
Section, such party shall give to each other party written notice of such
claim as soon as practicable. The provisions of this Section 13.3 in addition
to and not in lieu of the covenants of the parties contained in Sections 13.1
or 13.2 above.
13.4 DETERMINATION OF DAMAGES AND RELATED MATTERS.
(a) Upon the occurrence of any event which would give rise to a
claim by Southshore or SAC against, or to a right of defense and indemnity
against RV pursuant to this Section 13, or in the event that any suit, action,
investigation, claim or proceeding is begun, made or instituted as a result of
which RV may become obligated to Southshore or SAC hereunder, Southshore and
SAC shall give notice to RV of the occurrence of such event and shall identify
Southshore or SAC's choice of counsel to represent such investigation, claim
or proceedings, provided that the failure of Southshore or SAC to give notice
shall not affect the indemnification obligations of RV hereunder. Southshore
or SAC (i) shall have the exclusive right to so defend, contest or protect
against such matter utilizing the counsel of Southshore or SAC's choice (who
shall be reasonably acceptable to RV), and (ii) without further notice may set
off or apply against all amounts due RV hereunder, or their affiliates, under
any instrument or pursuant to any obligation, the full amount for
which indemnification hereunder is provided. RV shall have the right, but not
the obligation, to participate, at its own expense, in the defense thereof by
counsel of their choice.
(b) As Southshore or SAC incurs expenses for which indemnification
hereunder is provided and after any final judgment or award shall have been
rendered by a court, arbitration board or administrative agency of competent
jurisdiction, and the expiration of the time in which to appeal therefrom, or
a settlement shall have been consummated, Southshore or SAC shall forward to
RV notice of any sums due and owing by them pursuant to this Agreement with
respect to such matter and they shall be required to pay all of the sums so
due and owing to Southshore or SAC by certified or bank cashier's check within
ten (10) days of such notice.
(c) Upon the occurrence of any event which would give rise to a
claim by RV against, or to a right of defense and indemnity against Southshore
or SAC pursuant to this Section 13, or in the event that any suit, action,
investigation, claim or proceeding is begun, made or instituted as a result of
which Southshore or SAC may become obligated to RV hereunder. RV shall give
notice to Southshore or SAC respectively of the occurrence of such event and
shall identify their choice of counsel to represent such investigation, claim
or proceedings, provided that the failure of RV to give notice shall not
affect the indemnification obligations of Southshore or SAC hereunder. RV (i)
shall have the exclusive right to so defend, contest or protect against such
matter utilizing the counsel of their choice (who shall be reasonably
acceptable to Southshore or SAC), and (ii) without further notice may set off
or apply against all amounts due Southshore or SAC hereunder, or their
affiliates, under any instrument or pursuant to any obligation, the
full amount for which indemnification hereunder is provided. Southshore
and SAC shall have the right, but not the obligation, to participate, at their
own expense, in the defense thereof by counsel of their choice.
(d) As RV incurs expenses for which indemnification hereunder is
provided and after any final judgment or award shall have been rendered by a
court, arbitration board or administrative agency of competent jurisdiction,
and the expiration of the time in which to appeal therefrom, or a settlement
shall have been consummated. RV shall forward to Southshore or SAC notice of
any sums due and owing by it pursuant to this Agreement with respect to such
matter, and Southshore or SAC respectively shall be required to pay all of the
sums so due and owing to RV by certified or bank cashier's check within ten
(10) days of such notice.
13.5 REMEDIES FOR BREACH. In the event of any material breach of any of
the provisions of this Agreement, including but not limited to any breach of
any covenant, warranty or representation made by any party hereto, the other
party may terminate this Agreement as provided for in Section 12.1 above.
Specific performance shall not be a remedy available to any party for breach
of this Agreement.
SECTION 14: NONDISCLOSURE OF CONFIDENTIAL INFORMATION
Each of the parties hereto recognizes and acknowledges that it has and
will have access to certain nonpublic information of the others which shall be
deemed the confidential information of the other parties that is included in
the assets (including, but not limited to, business plans, costs, trade
secrets, licenses, research projects, profits, markets, sales, customer lists,
strategies, plans for future development, financial information and any other
information of a similar nature) that after the consummation of the
transactions contemplated hereby will be valuable, special and unique property
of the parties. Information shall not be deemed Confidential Information and
afforded the protections of this Section 14 if, on the Closing Date, such
information has been (i) developed by the receiving party independently of the
disclosing party, (ii) rightfully obtained without restriction by the
receiving party from a third party, provided that the third party had full
legal authority to possess and disclose such information, (iii) publicly
available other than through the fault or negligence of the receiving party,
(iv) released without restriction by the disclosing party to anyone, including
the United States government, or (v) properly and lawfully known to the
receiving party at the time of its disclosure, as evidenced by written
documentation conclusively established to have been in the possession of the
receiving party on the date of such disclosure. Each of the parties hereto
agrees that they will not disclose, and that they will use their best efforts
to prevent disclosure by any other Person of, any such confidential
information to any Person for any purpose or reason whatsoever, except to
authorized representatives of the parties. Notwithstanding, a party may use
and disclose any such confidential information to the extent that a party may
become compelled by Legal Requirements to disclose any such information;
provided, however, that such party shall use all reasonable efforts and
shall have afforded the other parties the opportunity to obtain an
appropriate protective order or other satisfactory assurance of confidential
treatment for any such information compelled to be disclosed. In the event of
termination of this Agreement, each party shall use all reasonable efforts to
cause to be delivered to the other parties, and to retain no copies of, any
documents, work papers and other materials obtained by such party or on such
party's behalf during the conduct of the matters provided for in this
Agreement, whether so obtained before or after the execution hereof. Each of
the parties recognizes and agrees that violation of any of the agreements
contained in this Section 14 will cause irreparable damage or injury to the
other parties, the exact amount of which may be impossible to ascertain, and
that, for such reason, among others, the other shall be entitled to an
injunction, without the necessity of posting bond therefor, restraining any
further violation of such agreements. Such rights to any injunction shall be
in addition to, and not in limitation of, any other rights and remedies the
parties may have against each other.
SECTION 15: EXPENSES
Each of the parties will pay all costs and expenses of its or his
performance and compliance with this Agreement. Notwithstanding the
foregoing, if the Agreement is not consummated by reason of a default of one
of the parties, then the expenses of each of the parties in connection with
the transaction contemplated herein shall be paid by such defaulting party.
SECTION 16: MISCELLANEOUS
16.1 ATTORNEY'S FEES. In any action at law or in equity or in any
arbitration proceeding, for declaratory relief or to enforce any of the
provisions or rights or obligations under this Agreement, the unsuccessful
party to such proceeding, shall pay the successful party or parties all
statutorily recoverable costs, expenses and reasonable attorneys' fees
incurred by the successful party or parties including without limitation
costs, expenses, and fees on any appeals and the enforcement of any award,
judgment or settlement obtained, such costs, expenses and attorneys' fees
shall be included as part of the judgment. The successful party shall be that
party who obtained substantially the relief or remedy sought, whether by
judgment, compromise, settlement or otherwise.
16.2 SURVIVAL AND INCORPORATION OF REPRESENTATIONS. The representations,
warranties, covenants and agreements made herein or in any certificates or
documents executed in connection herewith shall survive the execution and
delivery thereof for a period of one (1) year, and all statements contained in
any certificate or other document delivered by any party hereunder or in
connection herewith shall be deemed to constitute representations and
warranties made by that party to this Agreement.
16.3 INCORPORATION BY REFERENCE. All appendices to this Agreement and
all documents delivered pursuant to or referred to in this Agreement are
herein incorporated by reference and made a part hereof.
16.4 PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to, or shall, confer any rights or remedies under, or by
reason of, this Agreement, on any person other than the parties hereto and
their respective and proper successors and assigns. Nor shall anything in
this Agreement act to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement.
16.5 AMENDMENTS AND WAIVERS. This Agreement may not be amended, nor may
compliance with any term, covenant, agreement, condition or provision set
forth herein be waived (either generally or in a particular instance and
either retroactively or prospectively) unless such amendment or waiver is
agreed to in writing by all parties hereto.
16.6 WAIVER. No waiver of any breach of any one of the agreements,
terms, conditions, or covenants of this Agreement by the parties shall be
deemed to imply or constitute a waiver of any other agreement, term,
condition, or covenant of this Agreement. The failure of any party to insist
on strict performance of any agreement, term, condition, or covenant, herein
set forth, shall not constitute or be construed as a waiver of the rights of
either or the other thereafter to enforce any other default of such agreement,
term, condition, or covenant; neither shall such failure to insist upon strict
performance be deemed sufficient grounds to enable either party hereto to
forego or subvert or otherwise disregard any other agreement, term, condition,
or covenants of this Agreement.
16.7 GOVERNING LAW - CONSTRUCTION. This Agreement, and the rights and
obligations of the respective parties, shall be governed by and construed in
accordance with the laws of the State of Colorado, excluding conflict of law
provisions which would act to apply the laws of another state. Notwithstanding
the preceding sentence, it is acknowledged that each party hereto is being
represented by, or has waived the right to be. represented by, independent
counsel. Accordingly, the parties expressly agree that no provision of this
Agreement shall be construed against any party on the ground that the party or
its counsel drafted the provision. Nor may any provision of this Agreement be
construed against any party on the grounds that party caused the provision to
be present.
16.8 LIMITATION OF ACTIONS. No action may be brought by any party to
this Agreement to enforce any covenant made by any party hereto or to seek
damages or equitable relief arising from any claimed breach or nonperformance
of a covenant, representation, warranty or other performance provided for
herein unless such action is commenced within one (1) year of the date of
Closing. The parties hereto agree to be bound by the aforesaid limitation of
actions notwithstanding the provisions of any applicable statutory limitation
of actions to the contrary.
16.9 NOTICES. Any notice, communication, offer, acceptance, request,
consent, reply, or advice (herein severally and collectively, for convenience,
called "Notice"), in this Agreement provided or permitted to be given, served,
made, or accepted by any party or person to any other party or parties, person
or persons, hereunder must be in writing, addressed to the party to be
notified at the address set forth below, or such other address as to which one
party notifies the other in writing pursuant to the terms of this Section, and
must be served by (1) telefax or other similar electronic method, or (2)
depositing the same in the United States mail, certified, return receipt
requested and postage paid to the party or parties, person or persons to be
notified or entitled to receive same, or (3) delivering the same in person to
such party.
Notice shall be deemed to have been given immediately when sent by
telefax or other electronic method and seventy-two hours after being deposited
in the United States mail, or when personally delivered in the manner
hereinabove described. Notice provided in any manner not specified above
shall be effective only if and when received by the party or parties, person
or persons to be, or provided to be notified.
All notices, requests, demands and other communications required or
permitted under this Agreement shall be addressed as set forth below:
To Southshore: Xxx Xxxxxx
c/o Active Medical
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
With copies to: Xxx Xxxxx, Esq.
Krys, Boyle, Xxxxxxxx & Xxxxxx
South Tower
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
To RV: RV Xxxxxxx.xxx, Inc.
0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
With copies to: Xxxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx, LLC
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Any party receiving a facsimile transmission shall be entitled to rely upon a
facsimile transmission to the same extent as if it were an original. Any
party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions
of this Section for the giving of notice.
16.10 FAX/COUNTERPARTS. This Agreement may be executed by telex, telecopy
or other facsimile transmission, and such facsimile transmission shall be
valid and binding to the same extent as if it were an original. Further, this
Agreement may be signed in one or more counterparts, all of which when taken
together shall constitute the same documents. For all evidentiary purposes,
any one complete counter set of this Agreement shall be considered an
original.
16.11 CAPTIONS. The caption and heading of various sections and
paragraphs of this Agreement are for convenience only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
16.12 SEVERABILITV. Wherever there is any conflict between any provision
of this Agreement and any statute, law, regulation or judicial precedent, the
latter shall prevail, but in such event the provisions of this Agreement thus
affected shall be curtailed and limited only to the extent necessary to bring
it within the requirement of the law. In the event that any part, section,
paragraph or clause of this Agreement shall be held by a court of proper
jurisdiction to be invalid or unenforceable, the entire Agreement shall not
fail on account thereof, but the balance of the Agreement shall continue in
full force and effect unless such construction would clearly be contrary to
the intention of the parties or would result in unconscionable injustice.
16.13 JURISDICTION AND VENUE. Jurisdiction over any action, proceeding or
arbitration shall be proper only if filed and maintained in Colorado, and
venue shall be proper therefor only in the County of Boulder as to state court
proceedings or the District Court for the District of Colorado as to federal
court proceedings.
16.14 GOOD FAITH COOPERATION AND ADDITIONAL DOCUMENTS. The parties shall
use their best good faith efforts to fulfill all of the conditions set forth
in this Agreement over which it has control or influence. Each party
covenants and agrees to cooperate in good faith and to enter into and deliver
such other documents and papers as the other party reasonably shall require in
order to consummate the transactions contemplated hereby, provided in each
instance, any such document is in form and substance approved by the parties
and their respective legal counsel.
16.15 Legal Counsel. Each of the parties are being represented by
independent counsel; RV acknowledges that it is being represented by Xxxxxxxx
X. Xxxxxx of Xxxxxx & Xxxxxxx, LLC; and Southshore by Xxx Xxxxx of Krys,
Boyle, Xxxxxxxx & Xxxxxx.
16.16 NO FINDERS OR BROKERS FEES. Both parties agree that there are no
finders fees or brokers fees due to any person or entity in connection with
the transactions contemplated or provided for herein.
16.17 ASSIGNMENT. Neither party may directly or indirectly assign or
delegate, by operation of law or otherwise, all or any portion of
its/their/his rights, obligations or liabilities under this Agreement without
the prior written consent of all other parties, which consent may be withheld
in their respective sole and absolute discretion.
16.18 LIST OF EXHIBITS. The following Exhibits are attached to this
Agreement:
EXHIBITS
Exhibit 2.2 Short Form Agreement and Plan of Merger
Exhibit 4.3 Subscription Agreement
Exhibit 6.2(d) Employment Agreement with Xxxx Xxxxxx
Exhibit 8.6 Southshore Disclosure Schedule (Material Defaults)
Exhibit 8.7 Southshore Exceptions to Timely Filing of Taxes; Tax
Related Disputes
Exhibit 8.8 Southshore Actions, Proceedings, Orders, Writs,
Injunctions, Decrees, Liability for Damages
Exhibit 8.9 Southshore Post Balance Sheet Changes
Exhibit 8.11 Southshore Third Party Proprietary Interest in Intangible
Assets
Exhibit 8.12 Southshore Exceptions to Inventory Valuation, Condition
and Marketability
Exhibit 8.13 Southshore Exceptions to Collectability of Accounts
Receivable (Material Counterclaims or Set-Offs)
Exhibit 8.15 Southshore Exceptions to Ownership of Patents and Other
Intangible Rights
Exhibit 8.16 Southshore Changes in Suppliers and Customers
Exhibit 8.17 Southshore Liens or Encumbrances
Exhibit 8.18 Southshore and SAC Current Employees
Exhibit 8.19 Southshore Pending or Threatened Legal, Administrative, or
Other Proceedings or Governmental Investigation,
Exceptions to Compliance with Laws, Ordinances,
Requirements, Regulations, or Orders
Exhibit 8.20 Southshore Material Contract Agreements
Exhibit 8.20(f) Southshore Defaults or Breaches of Existing Contracts,
Agreements, Leases, Licenses, Plans, Arrangements and
Commitments
Exhibit 8.22 Southshore Insurance Coverage
Exhibit 8.23 Southshore Environmental Concerns: Hazardous Waste
Production, Storage, etc.
Exhibit 10.4 RV Financial Statements
Exhibit 10.5 RV: Other Equity Securities; Outstanding Purchase Rights
Exhibit 10.6 RV Disclosure Schedule (Material Defaults
Exhibit 10.7 RV Exceptions to Timely Filing of Taxes
Exhibit 10.8 RV Pending or Threatened Actions or Proceedings
Exhibit 10.9 RV Post Balance Sheet Changes
Exhibit 10.11 RV Third Party Proprietary Interest in Intangible Assets
Exhibit 10.12 RV Exceptions to Inventory Valuation, Condition and
Marketability
Exhibit 10.13 RV Exceptions to Collectability of Accounts Receivable
(Material Counterclaims or Set-Offs)
Exhibit 10.15 RV Exceptions to Ownership of Patents and Other Intangible
Rights
Exhibit 10.16 RV Changes in Suppliers and Customers
Exhibit 10.17 RV Liens or Encumbrances
Exhibit 10.18 RV Pending or Threatened Legal, Administrative or Other
Proceedings or Governmental Investigation, Exceptions to
Compliance with Laws, Ordinances, Requirements,
Regulations or Orders
Exhibit 10.19 RV Material Contract Agreements
Exhibit 10.19(f) RV Defaults or Breaches of Existing Contracts, Agreements,
Leases, Licenses, Plans, Arrangements and Commitments
Exhibit 10.20 RV Insurance Coverage
Exhibit 10.21 RV Environmental Concerns: Hazardous Waste Production,
Storage, etc.
16.19 ENTIRE AGREEMENT - AMENDMENT. For purposes of this Section, the
term "Agreement" shall include this Agreement and the Exhibits and other
documents attached hereto or described in Section 16.18. This Agreement, and
other documents delivered pursuant to this Agreement, contain all of the terms
and conditions agreed upon by the parties relating to the subject matter of
this Agreement and supersede all prior and contemporaneous agreements,
letters of intent, representations, warranties, disclosures, negotiations,
correspondence, undertakings and communications of the parties, oral or
written, respecting that subject matter.
16.20 AUTHORITY TO SIGN. Each of the persons signing below on behalf of
any party hereby represents and warrants that s/he or it is signing with full
and complete authority to bind the party on whose behalf of whom s/he or it is
signing, to each and every term of this Agreement.
16.21 EXECUTION OF DOCUMENTS. The parties hereto agree to execute and
deliver any and all other documents necessary and convenient to effectuate the
exchange of stock herein provided for, and RV as an inducing condition,
represent that it has the authority to enter into this Agreement and to make
the foregoing commitments for itself.
16.22 TIME. Time is of the essence of this Agreement and each of its
provisions.
IN WITNESS WHEREOF, the parties have signed the Agreement the date and
year first above written.
SOUTHSHORE CORPORATION,
a Colorado corporation
By:
--------------------------------
Xxxxxxx Xxxxxx, President
RV XXXXXXX.XXX, INC.,
a Colorado corporation
By:
--------------------------------
Xxxx Xxxxxx, President
