ACQUISITION AGREEMENT
This Agreement is made this 27th day of November 1999 by and among
Xxxxxxxx-Xxxx, Inc., a Delaware corporation ("WHI"), and the undersigned
shareholders (the "Shareholders") of Fulcrum Solutions, Inc., a Delaware
corporation ("Fulcrum").
BACKGROUND
The Shareholders own the number of shares of Class B Common Stock of
Fulcrum set forth after their respective names on Exhibit A hereto (the
"Shares");
WHI desires to acquire, and the Shareholders desire to sell, all of the
Shares owned by the Shareholders
NOW, THEREFORE, in consideration of the premises and promises made
herein, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
"CLOSING" has the meaning set forth in SECTION 2.1 below.
"CLOSING DATE" has the meaning set forth in SECTION 2.1 below.
ARTICLE II
ACQUISITION OF SHARES; CLOSING
2.1 THE CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place not later than 31 December
1999 (the "Closing Date").
2.2 ACQUISITION OF SHARES. Each of the Shareholders hereby sell his
Shares, and WHI hereby purchases such Shares, for the total consideration of
US $565,462 to be paid to the Shareholders pro rata to their holding of
Shares such consideration to be apportioned between cash and WHI Shares by
agreement between WHI and the Shareholders on or before the Closing Date. The
Shareholders shall receive such part of the consideration to be satisfied in
cash on the Closing Date, less all amounts owing by the Shareholder to
Fulcrum on account of the unpaid purchase price for the Shares and less
mandatory withholding on account of this transaction (the acceleration of
vesting of their Shares). In the event that the consideration is satisfied by
the issue of WHI Shares, then the number of such shares shall be calculated
by using the price of US $42.245 per WHI Share. The Shareholders shall
deliver to WHI all share certificates for their shares of Fulcrum, endorsed
for transfer or with duly endorsed stock powers, at the closing, and WHI
shall deliver certificates for the WHI shares described on Exhibit A as soon
as practicable
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after the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each Shareholder severally represents and warrants to WHI that such
Shareholder has full record and beneficial title to his Shares as set forth on
Exhibit A, free of all liens, claims and encumbrances, except for pledge of
Shares to Fulcrum to be satisfied by setoff of such Shareholder's liability for
the Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WHI
WHI represents and warrants to the Shareholders that the (i)
purchase of the Shares has been duly authorized and that this Agreement is
the valid and binding agreement of WHI and (ii) the shares of WHI's Common
Stock issuable under this Agreement have been duly authorized and when issued
in accordance with this Agreement shall be validly issued, fully paid and
nonassessable and are free and clear of any liens arising from WHI.
ARTICLE V
SECURITIES LAW MATTERS
The parties agree as follows with respect to the sale or other
disposition after Closing Date of WHI Shares:
5.1 DISPOSITION OF SHARES. Each Shareholder acknowledges that the
WHI Shares issued to him have been issued without registration based upon an
exemption under Section 4(2) of the Securities Act. Each Shareholder agrees
that he will not sell, transfer or otherwise dispose of any WHI Shares issued
to him, except pursuant to (i) an exemption from the registration
requirements under the Securities Act, in which case, each such Shareholder
shall first supply to WHI an opinion of counsel (which counsel and opinions
shall be reasonably satisfactory to WHI) that such exemption is available, or
(ii) an effective registration statement filed by WHI with the Securities
Exchange Commission under the Securities Act.
5.2 LEGENDS. The certificates representing WHI Shares shall bear the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE ACT, AND IN COMPLIANCE WITH
APPLICABLE SECURITIES LAWS OF ANY STATE WITH
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RESPECT THERETO, OR IN ACCORDANCE WITH AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE.
WHI may, unless a registration statement is in effect covering such shares,
place stop transfer orders with its transfer agents with respect to such
certificates to the extent required by federal securities laws.
5.3 OBTAINING OF GOVERNMENTAL APPROVALS AND STOCK EXCHANGE LISTINGS.
WHI will (a) use make available adequate current public information with
respect to WHI as is required pursuant to Rule 144(c) in connection with the
sale and transfer by the Shareholders under Rule 144 promulgated under the
Securities Act of 1993, as amended ("Rule 144") during the two year period
after the Closing Date, (b) direct the transfer agent of WHI's common stock
to remove the restrictive legend provided for in SECTION 5.2 and to deliver
certificates without a legend to a purchaser of WHI Shares from any
Shareholder in connection with a sale under Rule 144, and (c) cause such
shares of WHI common stock to be received by such purchaser to be listed on
the Nasdaq Stock Market.
ARTICLE VII
REGISTRATION RIGHTS
7.1 REGISTRATION RIGHTS FOR WHI; FILING OF REGISTRATION STATEMENT.
The Shareholders shall obtain the benefit of the registration rights being
provided to the Vendors of Fulcrum Solutions, Limited via the Merger
Agreement with WHI dated the date hereof, set forth as an Exhibit hereto.
7.2 AMENDMENTS AND SUPPLEMENTS; RESTRICTIONS ON USE. WHI shall be
entitled to delay the filing of such amendments and supplements to the
Registration Statement and the use of the prospectus if WHI determines that
such filing or use would impede, delay, or interfere with any significant
financing, acquisition, or other transaction involving WHI, or require
disclosure of material information which WHI has a bona fide business purpose
for preserving as confidential. WHI shall also advise the Shareholders
promptly after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the SEC suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose and promptly use its reasonable efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such stop order should be
issued. Following the lifting of such suspension, WHI shall promptly file
such documents or take such other action as shall be required to make the
prospectus current.
ARTICLE VIII
MISCELLANEOUS
8.1 SURVIVAL. All representations, warranties, covenants and
agreements contained in this Agreement or in any document delivered pursuant
hereto shall be deemed to be material and to
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have been relied upon by the parties hereto. All covenants and agreements
shall survive the Closing and shall be fully effective and enforceable until
the covenant or agreement has been fully performed. All representations and
warranties shall survive the Closing.
8.2 PRESS RELEASES AND ANNOUNCEMENTS. During the period beginning
upon full execution of this Agreement and ending upon the earlier of (i)
Closing or (ii) termination of this Agreement, no Party shall issue any press
release, public announcement or public disclosure relating to the subject
matter of this Agreement without the prior written approval of the other
parties; provided, however, that the foregoing shall not prohibit disclosure
to a party's attorneys, accountants, lenders or financial advisors (who shall
be bound by this provision), nor shall the foregoing prohibit WHI from making
any public disclosure it believes in good faith is required by law. After
Closing, WHI shall be entitled to make the first public disclosure regarding
the subject matter of this Agreement and WHI's consent shall be required
prior to any public disclosures made by the Shareholders.
8.3 NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
8.4 ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements or representations by or
among the parties, written or oral, that may have related in any way to the
subject matter hereof.
8.5 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
heirs, successors and permitted assigns. Other than WHI, no Party may assign
either this Agreement or any of its rights, interests or obligations
hereunder without the prior written approval of the other parties; provided
that in the event of an assignment by WHI, the assignor shall remain liable
for all of the obligations hereunder transferred to the Assignee. In no event
shall any assignment of this Agreement be made by WHI prior to Closing to a
party other than an Affiliate of WHI.
8.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. Any reference herein to
an agreement or contract shall be deemed to refer also to the other (such
terms being interchangeable) and shall include commitments and
understandings, whether written or oral, including all amendments thereto.
8.7 HEADINGS; MEANING. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement. The term "including" shall
be interpreted to mean "including without limitation."
8.8 NOTICES. All notices, requests, demands, claims and other
communications hereunder must be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date three business days after dispatch by certified or
registered mail, return receipt requested, if mailed, in each case delivered,
sent or mailed to such party, postage prepaid, and addressed to the intended
recipient as set forth below:
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If to the Shareholders: To the address set forth in Exhibit A.
If to WHI:
Xxxxxxxx-Xxxx, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, President
Fax No.: (000) 000-0000
Copies to:
Xxxxxxxx-Xxxx, Inc. Xxxx X. Xxxxx, P.C.
000 Xxxxx Xxxxxx Xxxxx XxXxxxxxx, Will & Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000 000 Xxxx Xxxxxx Xxxxxx
Attention: Xxxxx Xxxxxx, Esq. Xxxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
Any Party may give any notice, request, demand, claim or other communication
hereunder using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail or electronic
mail), but no such notice, request, demand, claim or other communication
shall be deemed to have been duly given unless and until it actually is
received by the individual for whom it is intended. Any Party may change its
address by giving the other parties notice in the manner herein set forth.
9.9 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the
State of Illinois.
9.10 AMENDMENTS AND WAIVERS. The parties may mutually amend any
provision of this Agreement at any time prior to the Closing Date. No
amendment or waiver of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by the appropriate parties. No waiver
by any Party of any misrepresentation or breach of warranty, covenant or
agreement hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent misrepresentation or breach of warranty, covenant or
agreement hereunder.
9.11 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction. If the final judgment of
a court of competent jurisdiction declares that any term or provision hereof
is invalid or unenforceable, the parties agree that the court making the
determination of invalidity or unenforceability shall have the power to
reduce the scope, duration or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and
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enforceable and that comes closest to expressing the intention of the invalid
or unenforceable term or provision, and this Agreement shall be enforceable
as so modified.
9.12 EXPENSES. Each party shall bear its own costs concerning this
Agreement.
9.13 INCORPORATION OF EXHIBIT. The Exhibit identified in this Agreement
is incorporated herein by reference and made a part hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
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XXXXXXXX-XXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
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By:
---------------------
XXXXXX XXXXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
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XXXXXXX XXXXXXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXX XXXXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXXX XXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXXX XXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
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XXX XXXXXXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
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XXXXX XXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
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EXHIBIT A
SHAREHOLDER OWNERSHIP AND CONSIDERATION
SHAREHOLDER FULCRUM SHARES Consideration (US$)
OWNED
Xxxxxx Xxxxxx 5,000 B Common Stock
000 X 00 Xxx 0
XX 00000
XXX
Xxxxxxx Xxxxxxxx 1,000 B Common Stock
00 Xxxxxx Xxxx
Xxxxxxx
XX 00000
XXX
Xxx Xxxxxx 2,500 B Common Stock
000 Xxxxxx Xxx
Xxxx Xxxxx
XX 00000
XXX
Xxxx Xxxx 2,000 B Common Stock
000 Xxxxxx Xxxxxx
Xxxxxxxxx 000
Xxxxxxx
XX 00000
XXX
SHAREHOLDER FULCRUM SHARES Consideration
OWNED (US$)
Xxxx Xxxx 500 B Common Stock
00 Xxxxxxx Xxxx
Xxx Xxxxxxxxxx
XX 00000
XXX
Xxx Xxxxxxxx 1,500 B Common Stock
000 Xxxx Xxx Xxxxxx
Xxx 0X
Xxx Xxxx
XX 00000
XXX
Xxxxx Xxxx 10,000 B Common Stock
00 Xxxxx Xxxxx Xxx
Xxxxxx
XX 00000
XXX
SUPPLEMENT TO ACQUISITION AGREEMENT
This Supplemental Agreement is made this 30th day of December 1999
by and among Xxxxxxxx-Xxxx, Inc., a Delaware corporation ("WHI"), and the
undersigned shareholders (the "Shareholders") of Fulcrum Solutions, Inc., a
Delaware corporation ("Fulcrum").
BACKGROUND
The parties executed an Acquisition Agreement dated November 27,
1999 ("Agreement") pursuant to which the Shareholders agreed to sell and WHI
agreed to purchase the number of shares of Class B Common Stock of Fulcrum
set forth after their respective names on Exhibit A hereto (the "Shares"),
for a total consideration of US $565,462 to be paid to the Shareholders pro
rata to their holding of Shares such consideration to be apportioned between
cash and WHI Shares by agreement between WHI and the Shareholders on or
before the Closing Date.
WHEREAS, the parties desire document that apportionment agreement;
NOW, THEREFORE, in consideration of the premises and promises made
herein, the parties agree as follows:
1. APPORTIONMENT AGREEMENT. It is agreed that the apportionment of
the purchase price is as set forth on Exhibit A. The Shareholders shall
receive such part of the consideration to be satisfied in cash on the Closing
Date, less all amounts owing by the Shareholder to Fulcrum on account of the
unpaid purchase price for the Shares and less mandatory withholding on
account of this transaction (the acceleration of vesting of their Shares).
Pursuant to the Agreement, the number of such shares has been calculated by
using the price of US $42.245 per WHI Share. On the date hereof, the
Shareholders are delivering to WHI all share certificates for their shares of
Fulcrum, endorsed for transfer or with duly endorsed stock powers. As soon as
practicable, WHI shall deliver certificates for the WHI shares described on
Exhibit A.
IN WITNESS WHEREOF, the parties hereto have executed this
Supplemental Agreement as of the date first above written.
XXXXXXXX-XXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
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continuation of signature page to Supplemental Agreement
XXXXXX XXXXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXXXXXX XXXXXXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXX XXXXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXXX XXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXXX XXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXX XXXXXXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
--------------------
XXXXX XXXX
by his attorney
/s/ Xxxxx Xxxxxxxxxx
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Exhibit A - see Excel spread sheet attached.
