SECURITIES EXCHANGE AGREEMENT
EXHIBIT
2.1
THIS
SECURITIES EXCHANGE AGREEMENT (this “Agreement”)
is
entered into as of January
31, 2007
by and
among BTHC XI, Inc., a Delaware corporation (the “Company”),
Anchor Funding Services, LLC, a North Carolina limited liability company
(“Anchor”),
the
members of Anchor listed on Exhibit
A-1 hereto
(the “Anchor
Members”)
and
the stockholders of the Company listed on Exhibit
A-2
hereto
(the “Company
Stockholders”).
The
Company, Anchor, the Anchor Members and the Company Stockholders are each a
“Party”
and
together are “Parties”
to
this
Agreement.
STATEMENT
OF PURPOSE
The
Company Stockholders collectively own substantially all of the outstanding
capital stock of the Company. The Anchor Members collectively own substantially
all of the outstanding Units of Anchor. The Anchor Members have agreed to
exchange their Units for shares of Company common stock, and the Company has
agreed to issue to the Anchor Members shares of Company common stock in exchange
for Units, on the terms and subject to the conditions set forth in this
Agreement (the “Exchange”
and,
together with the other transactions contemplated by this Agreement, the
“Transactions”).
For
Federal income tax purposes, it is intended that the Exchange, together with
the
Private Placement Transaction, qualify as an exchange under Section 351(a)
of
the Internal Revenue Code of 1986, as amended (the “Code”).
NOW,
THEREFORE,
in
consideration of the premises and the representations, warranties and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, do hereby agree as follows:
ARTICLE
I
SECURITIES
EXCHANGE
1.1 The
Exchange. Subject
to the terms and conditions of this Agreement, at the Closing each Anchor Member
will sell, convey, assign, transfer and deliver to the Company all their Units
(with the ownership of such Units as reflected on Schedule 1 Anchor’s operating
agreement, a copy of which is set forth in Schedule
2.1(a)
hereto),
and in exchange for the acquisition of such Units, the Company will issue to
each Anchor Member 80 shares of the Company’s common stock per Unit exchanged
(the “Exchange
Shares”).
1.2 Closing.
The
closing of the Transactions (the “Closing”)
shall
take place at the offices of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
legal counsel for Anchor located in Charlotte, North Carolina, at 10:00 a.m.,
local time, on the second business day following the satisfaction of the
conditions in Article
V
and
Article
VI
hereof
to be satisfied prior to the Closing or at such other date and time as the
Parties shall otherwise agree (the “Closing
Date”).
1.3 Tax
Treatment. It
is
intended by the Parties that the Exchange, together with the Private Placement
Transaction, qualify as an exchange under Section 351(a) of the
Code.
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1.4 Certain
Definitions
(a) “Knowledge”
For
purposes of this Agreement, whenever the phrase “to a Party’s knowledge,” “the
Party is not aware” or a similar expression appears in any representation or
warranty in this Agreement, it means either to the actual knowledge of the
Party’s executive officers, or that a prudent individual in the position of such
executive officers should be expected to discover or otherwise become aware
of
such fact, condition or other matter in the course of conducting a reasonable
investigation concerning the existence of such fact, condition or other matter.
Whenever the phrase “the Party has received no notice” or like expression
appears in any representation or warranty in this Agreement, it means that
none
of the Party’s executive officers has received actual electronic or written
notice of the matter to which such phrase is applied.
(b) “GAAP”
shall
mean United States generally accepted accounting principals, consistently
applied.
(c) “Material
Adverse Effect”
or
“Material
Adverse Change”
shall
mean any event, change or effect that, when taken individually or together
with
all other adverse events, changes and effects, is or is reasonably likely to
be
materially adverse to the financial condition, results of operations or business
and operations, as currently conducted, of the Party, taken as a whole, to
which
the phrase refers; provided, however, that the following shall not be taken
into
account in determining whether there has been a Material Adverse Effect on
or
with respect to such Party: any change, effect or circumstance (i) relating
to
conditions affecting the economy of the United States generally or (ii) relating
to conditions generally affecting the industry (or industries) in which such
Party participates, and not affecting such Party in a materially
disproportionate manner. For the avoidance of doubt, the Parties agree that
the
terms “material”, “materially”, or “materiality” as used in this Agreement with
an initial lower case “m” shall have their respective customary and ordinary
meanings, without regard to the meaning ascribed to Material Adverse
Effect.
(d) “Legal
Proceedings”
shall
mean any legal, administrative, arbitral or other proceedings, claims, actions
or governmental (or otherwise) investigations of any nature.
(e) “Legal
Requirement”
shall
mean any federal, state, local, municipal, foreign, international,
multinational, or other administrative order, constitution, law, ordinance,
principle of common law, regulation, statute or treaty.
(f) “Person”
shall
mean an individual, a corporation, a limited liability company, a partnership,
an association, a trust or any other entity or organization, including any
governmental or regulatory authority or agency.
(g) “Pink
Sheets”
shall
mean an electronic quotation system that displays quotes from broker-dealers
for
certain over-the-counter securities.
(h) “Subsidiaries”
when
used in this Agreement with respect to any Party, means any corporation, joint
venture, association, partnership, trust or other entity in which such Party
has, directly or indirectly, at least a fifty percent (50%) interest or acts
as
a general partner.
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(i) “Taxes”
shall
mean all federal, territorial, state, local or foreign income or profits taxes
(including but not limited to, federal income taxes and state income taxes),
payroll and employee withholding taxes, unemployment insurance, social security
taxes, sales and use taxes, ad valorem taxes, excise taxes, franchise taxes,
gross receipts taxes, business license taxes, occupation taxes, real and
personal property taxes, stamp taxes, environmental taxes, transfer taxes,
workers’ compensation, Pension Benefit Guaranty Corporation premiums and other
taxes, assessments, customs, duties, fees, levies or other governmental charges,
and other obligations of the same or of a similar nature to any of the
foregoing, whether disputed or not, together with any interest penalties,
additions to tax or additional amounts with respect thereto.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
OF
ANCHOR
Anchor
hereby represents and warrants to the Company that each of the following are
true and correct, except as set forth in the disclosure schedule delivered
by
Anchor on or before the date of this Agreement (the “Anchor
Disclosure Schedule”).
Disclosure in any paragraph of the Anchor Disclosure Schedule shall constitute
disclosure for all other sections of this Article
II
and this
Agreement.
2.1 Organization
and Good Standing
(a) Anchor
is
a limited liability company duly organized, validly existing and in good
standing under the laws of the State of North Carolina. Anchor has the requisite
company power and authority to own or lease all of its properties and assets
and
to carry on its business as it is now being conducted and is duly licensed
or
qualified to do business and is in good standing in each jurisdiction in which
the nature of the business conducted by it or the character or location of
the
properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed, qualified
or in good standing would not have a Material Adverse Effect on Anchor.
Schedule
2.1(a)
of the
Anchor Disclosure Schedule sets forth true and complete copies of the articles
of organization of Anchor and the operating agreement of Anchor, each as amended
and in effect on the date hereof (the “Anchor
Governing Documents”).
(b) Anchor
does not have any Subsidiaries. Anchor does not own or control, directly or
indirectly, any equity interest in any corporation, company, association,
partnership, joint venture or other entity and owns no real estate.
2.2 Capitalization.
The
number and type of outstanding Units of Anchor are as set forth on Schedule
1
Anchor’s operating agreement, a copy of which is set forth in Schedule
2.1(a)
hereto.
Except as set forth on such Schedule A, there are no Units, limited liability
company interests, other equity interests of Anchor and there are no outstanding
securities convertible or exchangeable into Units of Anchor or any options,
warrants, purchase rights, subscription rights, preemptive rights, conversion
rights, exchange rights, calls, puts, rights of first refusal or other Contracts
that could require Anchor to issue, sell or otherwise cause to become
outstanding or to acquire, repurchase or redeem Units or any other equity
interests of Anchor.
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2.3 Authority;
No Violation.
Anchor
has full company power and authority to execute and deliver this Agreement
and
to consummate the Transactions in accordance with the terms hereof. The
execution and delivery of this Agreement and the consummation of the
Transactions have been duly and validly approved by the members of Anchor.
This
Agreement has been duly and validly executed and delivered by Anchor and
constitutes the valid and binding obligation of Anchor, enforceable against
Anchor in accordance with its terms.
2.4 Financial
Statements
(a) Schedule 2.4(a)
of the
Anchor Disclosure Schedule sets forth copies of (i) the unaudited financial
statements of Anchor as of December 31, 2005; and (ii) unaudited financial
statements of Anchor for the ten months ended October 31, 2006 (the
“Anchor
Financial Statements”).
The
Anchor Financial Statements fairly present the financial condition and the
results of operations, changes in stockholders’ equity and cash flow of Anchor
as at the respective dates of and for the periods referred to in such Anchor
Financial Statements, all in accordance with GAAP, and are consistent with
the
books and records of Anchor; provided, however, that the Anchor Financial
Statements referred to in clause (ii) above are subject to normal recurring
year-end adjustments (which are not expected to be material) and do not include
footnotes.
(b) As
of the
date of this Agreement, all of the liabilities of Anchor for legal and
consulting fees and expenses are set forth on Schedule 2.4(b)
of the
Anchor Disclosure Schedule.
2.5 Absence
of Certain Changes or Events.
There
has been no Material Adverse Change to Anchor since October 31, 2006 or the
occurrence of a default as described in Section 2.10(c),
and to
Anchor’s knowledge, there has occurred no event or development which is
reasonably likely to cause such a Material Adverse Change to Anchor in the
future.
2.6 Legal
Proceedings.
There
is no Legal Proceeding which is pending and Anchor has received no notice that
any Legal Proceeding is threatened against Anchor or against any Anchor officer
or director in their capacity as a Anchor officer or director which is material
to Anchor. Anchor is not a party to any material order, judgment or decree
entered against Anchor in any lawsuit or proceeding.
2.7 Taxes
and Tax Returns.
All
material Tax returns (including information returns), reports, declarations
and
statements relating to Taxes (collectively “Returns”)
required to be filed to date by Anchor have been accurately prepared in all
material respects and duly filed, or an extension therefrom has been duly
obtained, and all material Taxes due and payable by Anchor have been paid when
due. There is no examination or audit for Taxes of Anchor currently in progress,
no written claim, asserted deficiency or assessment for Taxes of Anchor has
been
made, and, to the Knowledge of Anchor, no such claim, deficiency or assessment
has been threatened. No liens or similar encumbrances have been asserted against
Anchor with respect to the failure to pay any Taxes (other than with respect
to
Taxes not yet due and payable). Anchor has not waived any statute of limitations
in respect of Taxes or executed or filed with any taxing authority any
agreements extending the period for assessment or collection of any Taxes.
The
unpaid Taxes of Anchor for tax periods through October 31, 2006 do not exceed
the accruals and reserves for Taxes set forth on Anchor’s balance sheet as of
October 31, 2006. Proper amounts have been withheld by Anchor in accordance
with
Tax withholding provisions of applicable laws and, to the extent required,
have
been paid to the proper authority. Anchor is not and has never been a member
of
a group of corporations with which it has filed (or been required to file)
consolidated, combined or unitary Returns. Anchor is not a party to any
tax-sharing or tax-allocation agreement, nor does Anchor owe any amounts under
any tax-sharing or tax-allocation agreement. Anchor has never been a United
States real property holding corporation within the meaning of Section 897(c)(2)
of the Code.
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2.8 Employee
Benefit Plans
(a) Schedule
2.8(a)
of the
Anchor Disclosure Schedule contains a complete list of “Anchor
Plans”
consisting of each arrangement or policy (written or oral) and each plan or
arrangement (written or oral) providing for insurance coverage, workers’
compensation, disability benefits, supplemental unemployment benefits, vacation
benefits, retirement benefits or deferred compensation, profit sharing, bonuses,
stock options, stock appreciation rights, stock purchases or other forms of
incentive compensation or post-retirement insurance, compensation or benefits
which is maintained or administered by Anchor, or to which Anchor contributes,
and which covers any employee or former employee of Anchor or under which Anchor
has any liability, including “employee welfare benefit plan,” “employee benefit
plan” and “employee pension benefit plan” as defined under the Employee
Retirement Income Security Act (“ERISA”);
(b) With
respect to the Anchor Plans, Anchor has delivered, or made available, to the
Company prior to the Closing, a copy of each Anchor Plan and any amendment(s)
thereto, together with (i) any written descriptions or summaries thereof, (ii)
all trust agreements, insurance contracts, annuity contracts or other funding
instruments, and (iii) the last two annual reports (IRS Form 5500 Series,
together with all required schedules) prepared in connection with any such
Plan.
The Anchor Plans comply, to the extent applicable, with the requirements of
ERISA and the Code, and any Anchor Plan intended to be qualified under Section
401(a) of the Code has been determined by the Internal Revenue Service (the
“IRS”)
to be
so qualified;
(c) Anchor
is
not a party to any collective bargaining agreements. There are no strikes or
labor disputes or lawsuits, unfair labor or unlawful employment practice
charges, contract grievances or similar charges or actions pending, and Anchor
has received no notice that any strikes or labor disputes or lawsuits, unfair
labor or unlawful employment practice charges, contract grievances or similar
charges or actions is threatened, by any of the employees, former employees
or
employment applicants of Anchor that would have a Material Adverse Effect on
Anchor.
(d) To
Anchor’s knowledge, no employee of Anchor is obligated under any agreement or
judgment that would conflict with such employee’s obligation to use his best
efforts to promote the interests of Anchor or would conflict with Anchor’s
business as conducted. To Anchor’s knowledge, no employee of Anchor is in
violation of the terms of any employment agreement or any other agreement
relating to such employee’s relationship with any previous employer and no
litigation is pending and Anchor has received no notice that any such litigation
is threatened with regard thereto.
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2.9 Compliance
with Applicable Law.
Anchor
has substantially complied with all applicable laws, regulations, judgments,
decrees or orders of any court or governmental agency or entity except where
the
failure to so comply would not have a Material Adverse Effect on Anchor.
2.10 Certain
Contracts
(a) Schedule 2.10(a)
of the
Anchor Disclosure Schedule sets forth true and correct copies of all written
employment agreements or termination agreements with current officers,
directors, employees or consultants of Anchor, to which Anchor is a party as
of
the date of this Agreement.
(b) Except
as
set forth on Schedule
2.10(b),
As of
the date of this Agreement, (i) Anchor is not a party to or bound by any
commitment, agreement or other instrument (excluding commitments and agreements
in connection with extensions of credit by Anchor) which contemplates the
payment of amounts in excess of $100,000, or which otherwise is material to
the
operations, assets or financial condition of Anchor, including but not limited
to any royalty, franchising fees, or any other fee based on a percentage of
revenues or income and (ii) no commitment, agreement or other instrument to
which Anchor is a party or by which it is bound limits the freedom of Anchor
to
compete in any line of business or with any person.
(c) As
of the
date of this Agreement, Anchor is not in default in any material respect under
any material lease, contract, mortgage, promissory note, deed of trust, loan
agreement, license agreement (as to royalty payments) or other commitment or
arrangement.
(d) As
of the
date of this Agreement, to the knowledge of Anchor, any other party thereto
is
not in default in any material respect under any material lease, contract,
mortgage, promissory note, deed of trust, loan agreement, license agreement
or
other commitment or arrangement, except for any such default that is not
expected to have a Material Adverse Effect on Anchor.
(e) As
of the
date of this Agreement, to the knowledge of Anchor, all royalty payments,
franchising fees, or any other payments based on a percentage of revenues or
income have been fully paid by Anchor to any other party.
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2.11 Properties
and Insurance
(a) Anchor
has good and, as to owned real property, if any, legal title to all material
assets and properties, whether real or personal, tangible or intangible,
reflected in Anchor’s balance sheet as of October 31, 2006, or owned and
acquired subsequent thereto (except to the extent that such assets and
properties have been disposed of for fair value in the ordinary course of
business since October 31, 2006), subject to no encumbrances, liens, mortgages,
security interests or pledges, except (i) those items that secure
liabilities that are reflected in such balance sheet or incurred in the ordinary
course of business after the date of such balance sheet, (ii) statutory
liens for amounts not yet delinquent or which are being contested in good faith,
and statutory and contractual landlord’s liens in connection with any leases,
(iii) such encumbrances, liens, mortgages, security interests, pledges and
title imperfections that are not in the aggregate material to the business,
operations, assets, and financial condition of Anchor and (iv) with respect
to owned real property, if any, title imperfections noted in title reports
delivered to the Company prior to the date hereof. Anchor, as lessee, has the
right under written leases to occupy, use, possess and control, in all material
respects, all real property leased by it, subject to the terms and provisions
of
such leases.
(b) Except
for software licenses associated with stand-alone computers, leases of vehicles
and miscellaneous office equipment and all sale-leaseback transactions and
subject to the Intellectual Property rights of third parties, all of the assets
(tangible and intangible) purported to be owned by Anchor that exceed $5,000
in
value are the lawful property of Anchor and as such are freely and fully
assignable or transferable except as otherwise provided herein.
(c) Schedule
2.11(c)
of the
Anchor Disclosure Schedule lists all policies of insurance and bonds covering
business operations and insurable properties and assets of Anchor, all risks
insured against, and the amount thereof and deductibles relating thereto. Anchor
has not, since January 1, 2005, received any notice of cancellation or
notice of a material amendment of any such insurance policy or bond and it
is
not in default in any material respect under such policy or bond, and, to
Anchor’s knowledge, no coverage thereunder is being disputed and all material
claims thereunder have been filed in a timely fashion.
2.12 Minute
Books
.
The
minute books of Anchor contain records which, in all material respects,
accurately record all meetings of its members.
2.13 Environmental
Matters
(a) Anchor
has not received any written notice, citation, claim, assessment, proposed
assessment or demand for abatement alleging that Anchor is responsible for
the
correction or cleanup of any condition resulting from the violation of any
law,
ordinance or other governmental regulation regarding environmental matters,
which correction or cleanup would be material to the business, operations,
assets or financial condition of Anchor. Anchor has no knowledge that any toxic
or hazardous substances or materials have been emitted, generated, disposed
of
or stored on any real property owned or leased by Anchor, or owned or controlled
by Anchor as a trustee or fiduciary (collectively, “Anchor
Properties”),
in
any manner that violates or, after the lapse of time may violate, any presently
existing federal, regional, state or local law or regulation governing or
pertaining to such substances and materials, the violation of which would have
a
Material Adverse Effect on Anchor.
7
(b) Anchor
has no knowledge that, during Anchor’s ownership or lease of such Anchor
Properties, any of the Anchor Properties has been operated in any manner that
violated any applicable national, state or local law or regulation governing
or
pertaining to toxic or hazardous substances and materials, the violation of
which would have a Material Adverse Effect on Anchor.
2.14 Agreements
with Governmental Entity.
Anchor
is not a party to any agreement or memorandum of understanding with, or a party
to any commitment letter, or board resolution submitted to a regulatory
authority or similar undertaking to, and is not a recipient of, nor a party
to
any order or directive by, any court, governmental authority or other regulatory
or administrative agency or commission, domestic or foreign.
2.15 Labor
Disputes.
Anchor
is not directly or indirectly involved in and Anchor has received no notice
threatening any labor dispute or trouble or organizational effort, including,
without limitation, matters regarding actual or alleged discrimination by reason
of race, creed, sex, disability or national origin, which would have a Material
Adverse Effect on Anchor.
2.16 Loans,
Etc.
No
member of Anchor has any liabilities, obligations or indebtedness of any kind
whatsoever chargeable to the Anchor member and payable to Anchor by the Anchor
member.
2.17 Intellectual
Property
(a) The
term
“Intellectual
Property”
includes the following:
(i) all
United States, international and foreign patents, patent applications and
statutory invention registrations, together with all reissues, divisions,
continuations, continuations-in-part, extensions and reexaminations thereof,
all
inventions therein, all rights therein provided by international treaties or
conventions and all improvements thereto, and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto;
(ii) all
trademarks (including, without limitation, service marks), certification marks,
collective marks, trade dress, logos, domain names, product configurations,
trade names, business names, corporate names and other source identifiers,
whether or not registered, whether currently in use or not, including, without
limitation, all common law rights and registrations and applications for
registration thereof, and all other marks registered in the U.S. Patent and
Trademark Office or in any office or agency of any State or Territory of the
United States or any foreign country (but excluding any United States
intent-to-use trademark application prior to the filing and acceptance of a
Statement of Use or an Amendment to allege use in connection therewith to the
extent that a valid security interest may not be taken in such an intent-to-use
trademark application under applicable law), and all rights therein provided
by
international treaties or conventions, all reissues, extensions and renewals
of
any of the foregoing, together in each case with the goodwill of the business
connected therewith and symbolized thereby, and all rights corresponding thereto
throughout the world and all other rights of any kind whatsoever accruing
thereunder or pertaining thereto;
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(iii) all
copyrights, copyright applications, copyright registrations and like protections
in each work of authorship, whether statutory or common law, whether published
or unpublished, any renewals or extensions thereof, all copyrights of works
based on, incorporated in, derived from, or relating to works covered by such
copyrights, together with all rights corresponding thereto throughout the world
and all other rights of any kind whatsoever accruing thereunder or pertaining
thereto;
(iv) all
confidential and proprietary information, including, without limitation,
know-how, trade secrets, manufacturing and production processes and techniques,
inventions, research and development information, technical data, financial,
marketing and business data, pricing and cost information, business and
marketing plans and customer and supplier lists and information;
(v) all
computer software programs and databases (including, without limitation, source
code, object code and all related applications and data files), firmware, and
documentation and materials relating thereto, and all rights with respect to
the
foregoing, together with any and all options, warranties, service contracts,
program services, test rights, maintenance rights, improvement rights, renewal
rights and indemnifications and any substitutions, replacements, additions
or
model conversions of any of the foregoing;
(vi) all
license agreements, permits, authorizations and franchises, whether with respect
to the Patents, Trademarks, Copyrights, URLs, Trade Secrets or Computer
Software, or with respect to the patents, trademarks, copyrights, trade secrets,
computer software or other proprietary right of any other Person, and all
income, royalties and other payments now or hereafter due and/or payable with
respect thereto, subject, in each case, to the terms of such license agreements,
permits, authorizations and franchises;
(vii) all
URLs,
domain names or other names or addresses with respect to the Internet
(including, without limitation, registrations and applications for registration
thereof with private or public URL registries, domestic and foreign), together
with all intellectual property and all other rights of any kind whatsoever
of
accruing thereunder, pertaining thereto or associated therewith, including,
without limitation, all registrations, applications, renewals, reissues,
extensions, links (including, without limitation, metal tags), and
connections.
(b) Agreements.
Schedule 2.17(b)
of the
Anchor Disclosure Schedule contains a complete and accurate list and summary
description, including any royalties paid or received by Anchor, of each written
or oral lease, agreement, contract, commitment or license by which Anchor
(a) has or may acquire any rights, (b) has or may become subject to
any obligation or liability, or (c) or any of the assets owned or used by
it is or may become bound (“Arrangements”)
relating to Intellectual Property to which Anchor is a party or by which Anchor
is bound, except for any license implied by the sale of a product and perpetual,
paid-up licenses for commonly available software programs with a value of less
than $5,000 under which Anchor is the licensee. There are no outstanding and,
to
the knowledge of Anchor, no threatened disputes or disagreements with respect
to
any such Arrangements. To the knowledge of Anchor, no party to an Arrangement
relating to the use by Anchor of any Intellectual Property owned by another
Person is or has at any time been in breach of such Arrangements. Anchor has
not
granted or is not obligated to grant a license, assignment or other right with
respect to any Intellectual Property.
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(c) Know-How.
(i) The
Intellectual Property includes all such assets which are reasonably necessary
for the operation of Anchor’s businesses as it is currently conducted. Anchor
owns or possesses sufficient legal rights to all Intellectual Property necessary
for the operation of its business as it is currently conducted except where
the
failure to have such rights would not have a Material Adverse Effect on the
operations or financial condition of Anchor. To the knowledge of Anchor, it
has
not violated or, by conducting its business as presently proposed, would violate
any of the Intellectual Property Rights of any other Person.
(ii) All
former and current employees of Anchor have executed written Arrangements with
Anchor that assign to Anchor all rights to any inventions, improvements,
discoveries, or information relating to the business of Anchor. To the knowledge
of Anchor, no employee of Anchor has entered into any Arrangement that restricts
or limits in any way the scope or type of work in which the employee may be
engaged or requires the employee to transfer, assign, or disclose information
concerning his or her work to anyone other than Anchor. No past or present
stockholder, employee, director, officer, contractor, agent or representative
of
Anchor has any ownership interest or any other rights in or to any Intellectual
Property. No Arrangement or understanding exists between Anchor and any third
party which would impede or prevent the continued use of such right, title
and
interest of Anchor in and to the Intellectual Property as Anchor had prior
to
the Closing and used in the conduct of its business, subject to the rights
of
licensors and licensees pursuant to existing Arrangements listed on Schedule 2.17(b)
to the
Anchor Disclosure Schedule.
2.18 No
Brokers.
Anchor
has not employed or authorized anyone to represent it as a broker, finder or
financial consultant in connection with the Transactions, and no broker, finder,
financial consultant or other person is entitled to any commission, finder’s fee
or consulting fee, or any similar fee, from Anchor in connection with the
Transactions. Anchor will indemnify and hold harmless the Company from and
against any and all losses, claims, demands, damages, costs and expenses,
including, without limitation, reasonable attorneys’ fees and expenses the
Company may sustain or incur as a result of any claim for a commission, finder’s
fee or consulting fee by a broker, finder or financial consultant acting on
behalf of Anchor.
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2.19 Bankruptcy;
Criminal Proceedings.
To the
knowledge of Anchor, Anchor, its officers, directors, affiliates, promoters
or
any predecessor thereof have not been subject to or suffered any of the
following:
(a) Any
bankruptcy petition filed by or against any business of which such Person was
a
general partner or executive officer either at the time of the bankruptcy or
within two (2) years prior to that time;
(b) Any
conviction in a criminal proceeding or being subject to a pending criminal
proceeding (excluding traffic violations and other misdemeanor offenses) within
ten (10) years from the date hereof;
(c) Any
order, judgment or decree, not subsequently reversed, suspended or vacated,
of
any court of competent jurisdiction, permanently or temporarily enjoining,
barring, suspending or otherwise limiting such Person’s involvement in any type
of business, securities or banking activities; or
(d) Being
found guilty by a court of competent jurisdiction (in a civil action), the
Securities and Exchange Commission (“SEC”)
or the
Commodity Futures Trading Commission to have violated a federal or state
securities or commodities law, and the judgment has not been reversed, suspended
or vacated.
2.20 Disclosure.
No
representation or warranty contained in Article
II
of this
Agreement contains any untrue statement of a material fact or omits to state
a
material fact necessary to make the statements herein not misleading in the
context of such representations and warranties.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
OF
COMPANY AND COMPANY STOCKHOLDERS
The
Company and the Company Stockholders hereby represent and warrant to Anchor
that
the statements contained in this Article
III
are true
and correct, except as set forth in the disclosure schedule delivered by the
Company and the Company Stockholders to Anchor on or before the date of this
Agreement (the “Company
Disclosure Schedule”).
Notwithstanding the foregoing, with respect to the representations and
warranties of the Company Stockholders (i) Halter Financial Investments, L.P.
represents and warrants to Anchor that the statements contained in this
Article
III
are true
and correct, except as set forth in the Company Disclosure Schedule, solely
as
to the Operating Period (as such term is defined in Section 7.1(a))
and
(ii) Benchmark Equity Group, Inc., Xxxxxxx Xxxxxx and Xxxxx XxXxxx, jointly
and
severally, represent and warrant to Anchor that the statements contained in
this
Article
III
are true
and correct, except as set forth in the Company Disclosure Schedule, solely
as
to the Ownership Period (as such term is defined in Section 7.1(b)).
3.1 Organization
and Good Standing
.
(a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Company has the requisite corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted and is duly licensed or
qualified to do business and in good standing in each jurisdiction in which
the
nature of the business conducted by it or the character or location of the
properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed, qualified
or in good standing would not have a Material Adverse Effect on the Company.
Schedule
3.1(a)
of the
Company Disclosure Schedule sets forth true and complete copies of the
Certificate of Incorporation and bylaws of the Company each as amended and
in
effect on the date hereof (the “Company
Governing Documents”
and
together with the Anchor Governing Documents, “Governing
Documents”).
11
(b) The
Company does not own or control, directly or indirectly, any equity interest
in
any corporation, company, association, partnership, joint venture or other
entity or own real estate.
3.2 Capitalization
(a) The
authorized capital stock of the Company consists of an aggregate of 40,000,000
shares of Company Common Stock and 10,000,000 shares of preferred stock, par
value $0.001 per share (“Company
Preferred Stock”
and
together with Company Common Stock, “Company
Stock”).
As of
the date hereof there are and immediately prior to Closing and the completion
of
the Private Placement Transaction there will be, 3,820,555 shares of Company
Common Stock issued and outstanding, no shares of Company Preferred Stock issued
and outstanding and no shares of Company Stock held in the treasury of the
Company. The issued and outstanding shares of Company Stock are owned by the
Persons and in the numbers specified in Schedule
3.2
of the
Company Disclosure Schedule. Except as set forth on Schedule
3.2,
there
are no outstanding options, warrants or other rights to acquire shares of
Company Stock. All issued and outstanding shares of Company Common Stock are
duly authorized and validly issued, and fully paid and nonassessable and have
voting rights. The authorized but unissued shares of Company Stock are not
subject to any preemptive rights. The Company does not have, nor is it bound
by,
any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the transfer, purchase or issuance
of
any shares of capital stock of the Company or any securities representing the
right to purchase or otherwise receive any shares of such capital stock or
any
securities convertible into or representing the right to subscribe for any
such
shares, and there are no agreements or understandings with respect to voting
of
any such shares. None of the outstanding equity securities or other securities
of the Company was issued in violation of the Securities Act of 1933, as amended
(the “Securities
Act”),
or
any other state of federal law. There are no outstanding obligations of the
Company to register under the Securities Act any shares of its capital stock
or
to include in any registration of its capital stock shares held by others.
12
(b) All
of
the Exchange Shares will be, when issued on the terms and conditions of this
Agreement, duly authorized, validly issued, fully paid and nonassessable and
not
subject to or issued in violation of any purchase option, call option, right
of
first refusal, preemptive right, subscription right or any similar right under
any provision of the Company’s certificate of incorporation or bylaws or any
agreement to which the Company is a party or is otherwise bound.
(c) Immediately
following the issuance of the Exchange Shares, the issued and outstanding shares
of Company Common Stock will be owned by the Persons and in the numbers
specified in Schedule
3.2
of the
Company Disclosure Schedule. Except for the equity securities to be sold
pursuant to the Private Placement Transaction and any Common Stock to be issued
upon the exercise of any warrants or options set forth on Schedule
3.2
or on
Schedule 5.4(c),
the
Company has no plan or intention or any obligation to issue any additional
capital stock.
3.3 Authority;
No Violation
(a) The
Company has full corporate power and authority to execute and deliver this
Agreement and to consummate the Transactions in accordance with the terms
hereof. The execution and delivery of this Agreement and the consummation of
the
Transactions have been duly and validly approved by the board of directors
of
the Company. No corporate proceedings on the part of the Company are necessary
to consummate the Transactions.
(b) Neither
the execution and delivery of this Agreement by the Company, nor the
consummation by the Company of the Transactions in accordance with the terms
hereof, or compliance by the Company with any of the terms or provisions hereof,
will (i) violate any provision of the Company’s Certificate of Incorporation or
bylaws, each as amended and in effect as of the date hereof, (ii) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to the Company or any of its properties or assets, or
(iii) violate, conflict with, result in a breach of any provisions of,
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, result in the termination of, accelerate
the
performance required by, or result in the creation of any lien, security
interest, charge or other encumbrance upon any of the properties or assets
of
the Company under any of the terms, conditions or provisions of, any note,
bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which the Company is a party, or by which the
Company or any of its properties or assets may be bound or affected except,
with
respect to (ii) and (iii) above, such as individually and in the aggregate
would
not have a Material Adverse Effect on the Company, or the ability of the Company
to consummate the Transactions. Except as set forth in Section 3.3(b) of the
Company Disclosure Schedule, no consents or approvals of or filings or
registrations with or notices to any public body or authority are necessary
on
behalf of the Company in connection with (x) the execution and delivery by
the
Company of this Agreement and (y) the consummation by the Company of the
Transactions.
13
3.4 Interim
Operations of the Company
.
Since
November 29, 2004 the Company has engaged in no business activities other than
in connection with and as contemplated by this Agreement.
3.5 Financial
Statements
(a) Schedule 3.5(a)
of the
Company Disclosure Schedule sets forth copies of the audited financial
statements of the Company as of June 30, 2006 and for the six month period
ended
June 30, 2006, for the year ended December 31, 2005 and for the period from
November 29, 2004 to December 31, 2004, together with the report thereon of
X.X.
Xxxxxxxx, CPA, independent certified public accountants (the “Company
Financial Statements”).
The
Company Financial Statements fairly present the financial condition and the
results of operations, changes in stockholders’ equity and cash flow of the
Company as at the respective dates of and for the periods referred to in such
Company Financial Statements, all in accordance with GAAP, and are consistent
with the books and records of the Company. The Company Financial Statements
do
not now and did not at the time they were prepared contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading.
(b) As
of the
date of this Agreement, the Company has no liabilities for legal or consulting
fees or expenses.
3.6 Absence
of Certain Changes or Events.
There
has been no Material Adverse Change to the Company since June 30, 2006 or the
occurrence of a default as described in Section 3.11(c),
and to
the Company’s knowledge, there has occurred no event or development which is
reasonably likely to cause such a Material Adverse Change to the Company in
the
future.
3.7 Legal
Proceedings.
There
is no Legal Proceeding which is pending, and the Company has not received notice
threatening a Legal Proceeding, against the Company or against any present
or
former Company officer or director in their capacity as an officer or director
which is material to the Company. the Company is not a party to any material
order, judgment or decree entered against the Company in any lawsuit or
proceeding.
3.8 Taxes
and Tax Returns.
All
material Returns required to be filed to date by the Company (and any
predecessor) have been accurately prepared in all material respects and duly
filed, or an extension therefrom has been duly obtained, and all material Taxes
due and payable by the Company (and any predecessor) have been paid when due.
There is no examination or audit for Taxes of the Company (or any predecessor)
currently in progress, no written claim, asserted deficiency or assessment
for
Taxes of the Company (or any predecessor) has been made, and, to the Knowledge
of Company, no such claim, deficiency or assessment has been threatened. No
liens or similar encumbrances have been asserted against the Company (or any
predecessor) with respect to the failure to pay any Taxes. The Company has
not
waived any statute of limitations in respect of Taxes or executed or filed
with
any taxing authority any agreements extending the period for assessment or
collection of any Taxes. The unpaid Taxes of the Company for tax periods through
June 30, 2006 do not exceed the accruals and reserves for Taxes set forth on
the
Company’s balance sheet as of June 30, 2006. Proper amounts have been withheld
by the Company (and any predecessor) in accordance with Tax withholding
provisions of applicable laws and, to the extent required, have been paid to
the
proper authority. Neither the Company nor any predecessor is or has ever been
a
member of a group of corporations with which it has filed (or been required
to
file) affiliated, consolidated, combined, unitary or similar Returns. Neither
the Company nor any predecessor is a party to any tax-sharing or tax-allocation
agreement, nor does the Company (or any predecessor) owe any amounts under
any
tax-sharing or tax-allocation agreement, or as transferee or successor or by
contract. The Company has never been a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code.
14
3.9 Employee
Benefit Plans
(a) The
Company does not have any arrangement or policy (written or oral) or other
plan
or arrangement (written or oral) providing for insurance coverage, workers’
compensation, disability benefits, supplemental unemployment benefits, vacation
benefits, retirement benefits or deferred compensation, profit sharing, bonuses,
stock options, stock appreciation rights, stock purchases or other forms of
incentive compensation or post-retirement insurance, compensation or benefits,
nor does the Company contribute to or have liability under any such plan or
arrangement, with respect to any employee or former employee of the Company,
including “employee welfare benefit plan,” “employee benefit plan” and “employee
pension benefit plan” as defined under ERISA;
(b) The
Company is not a party to any collective bargaining agreements. There are no
strikes or labor disputes or lawsuits, unfair labor or unlawful employment
practice charges, contract grievances or similar charges or actions pending,
and
the Company has received no notice that any strikes or labor disputes or
lawsuits, unfair labor or unlawful employment practice charges, contract
grievances or similar charges or actions is threatened, by any of the employees,
former employees or employment applicants of the Company that would have a
Material Adverse Effect on the Company.
(c) To
the
Company’s knowledge, no employee of the Company is obligated under any agreement
or judgment that would conflict with such employee’s obligation to use his best
efforts to promote the interests of the Company or would conflict with the
Company’s business as conducted. To the Company’s knowledge, no employee of the
Company is in violation of the terms of any employment agreement or any other
agreement relating to such employee’s relationship with any previous employer
and no litigation is pending and the Company has received no notice that any
such litigation is threatened with regard thereto.
3.10 Compliance
with Applicable Law
.
The
Company has substantially complied with all applicable laws, regulations,
judgments, decrees or orders of any court or governmental agency or entity
except where the failure to so comply would not have a Material Adverse Effect
on the Company.
15
3.11 Certain
Contracts
(a) The
Company has no written employment agreements or termination agreements with
current officers, directors or consultants.
(b) The
Company is not a party to or bound by any commitment, agreement or other
instrument (excluding commitments and agreements in connection with extensions
of credit by the Company) which contemplates the payment of amounts in excess
of
$10,000, or which otherwise is material to the operations, assets or financial
condition of the Company, including but not limited to any royalty, franchising
fees, or any other fee based on a percentage of revenues or income. No
commitment, agreement or other instrument to which the Company is a party or
by
which it is bound limits the freedom of the Company to compete in any line
of
business or with any Person.
(c) The
Company is not in default in any material respect under any material lease,
contract, mortgage, promissory note, deed of trust, loan agreement, license
agreement (as to royalty payments) or other commitment or
arrangement.
(d) As
of the
date of this Agreement, to the knowledge of the Company, any other party thereto
is not in default in any material respect under any material lease, contract,
mortgage, promissory note, deed of trust, loan agreement, license agreement
or
other commitment or arrangement that is material to the Company.
(e) To
the
knowledge of the Company, all royalty payments, franchising fees, or any other
payments based on a percentage of revenues or income have been fully paid by
the
Company to any other party.
3.12 Properties
and Insurance
(a) The
Company has good and, as to owned real property, if any, legal title to all
material assets and properties, whether real or personal, tangible or
intangible, reflected in the Company’s balance sheet as of June 30, 2006, or
owned and acquired subsequent thereto (except to the extent that such assets
and
properties have been disposed of for fair value in the ordinary course of
business since June 30, 2006), subject to no encumbrances, liens, mortgages,
security interests or pledges, except (i) those items that secure
liabilities that are reflected in such balance sheet or the notes thereto or
incurred in the ordinary course of business after the date of such balance
sheet, (ii) statutory liens for amounts not yet delinquent or which are
being contested in good faith and statutory and contractual landlord’s liens in
connection with any leases, (iii) such encumbrances, liens, mortgages,
security interests, pledges and title imperfections that are not in the
aggregate material to the business, operations, assets, and financial condition
of the Company and (iv) with respect to owned real property, if any, title
imperfections noted in title reports delivered to Anchor prior to the date
hereof. The Company, as lessee, has the right under written leases to occupy,
use, possess and control, in all material respects, all real property leased
by
it, as presently occupied, used, possessed and controlled by it, subject to
the
terms and provisions of such leases.
16
(b) Except
for software licenses associated with stand-alone computers, leases of vehicles
and miscellaneous office equipment, all sale-leaseback transactions and subject
to Intellectual Property rights of third parties, all of the assets (tangible
and intangible) purported to be owned by the Company that exceed $5,000 in
value
are the lawful property of the Company and as such are freely and fully
assignable or transferable except as otherwise provided herein.
(c) The
Company has no policies of insurance and bonds covering business operations
or
insurable properties or assets of the Company. The Company has not, since
November 29, 2004, received any notice of cancellation or notice of a material
amendment of any such insurance policy or bond and it is not in default in
any
material respect under such policy or bond, and, to the Company’s knowledge, no
coverage thereunder is being disputed and all material claims thereunder have
been filed in a timely fashion.
3.13 Minute
Books.
The
minute books of the Company contain records which, in all material respects,
accurately record all meetings of their stockholders and Boards of Directors
(including committees of the Board of Directors).
3.14 Environmental
Matters
(a) The
Company has not received any written notice, citation, claim, assessment,
proposed assessment or demand for abatement alleging that the Company is
responsible for the correction or cleanup of any condition resulting from the
violation of any law, ordinance or other governmental regulation regarding
environmental matters, which correction or cleanup would be material to the
business, operations, assets or financial condition of the Company. The Company
has no knowledge that any toxic or hazardous substances or materials have been
emitted, generated, disposed of or stored on any real property owned or leased
by the Company, or owned or controlled by the Company as a trustee or fiduciary
(collectively, “Company Properties”),
in
any manner that violates or, after the lapse of time may violate, any presently
existing federal, regional, state or local law or regulation governing or
pertaining to such substances and materials, the violation of which would have
a
Material Adverse Effect on the Company.
(b) The
Company has no knowledge that, during the Company’s ownership or lease of such
Company Properties, any of such Company Properties has been operated in any
manner that violated any applicable national, state or local law or regulation
governing or pertaining to toxic or hazardous substances and materials, the
violation of which would have a Material Adverse Effect on the
Company.
3.15 Agreements
with Governmental Entity.
The
Company is not a party to any agreement or memorandum of understanding with,
or
a party to any commitment letter, or board resolution submitted to a regulatory
authority or similar undertaking to, and is not a recipient of, nor a party
to
any order or directive by, any court, governmental authority or other regulatory
or administrative agency or commission, domestic or foreign.
17
3.16 Labor
Disputes.
The
Company is not directly or indirectly involved in and the Company has received
no notice threatening any labor dispute or trouble or organizational effort,
including, without limitation, matters regarding actual or alleged
discrimination by reason of race, creed, sex, disability or national origin,
which would have a Material Adverse Effect on the Company.
3.17 Loans,
Etc.
No
Company stockholder has any liabilities, obligations or indebtedness of any
kind
whatsoever chargeable to the Company stockholder and payable to the Company
by
the Company stockholder.
3.18 Absence
of Liabilities
.
The
Company has no obligations or liabilities of any nature whether known or
unknown, whether absolute or contingent, whether liquidated or unliquidated,
whether due or to become due, or otherwise.
3.19 Intellectual
Property
(a) Agreements.
The
Company is not a party to or bound by any Arrangements relating to Intellectual
Property, except for any license implied by the sale of a product and perpetual,
paid-up licenses for commonly available software programs with a value of less
than $5,000 under which the Company is the licensee. There are no outstanding
and, to the knowledge of the Company, no threatened disputes or disagreements
with respect to any such Arrangements. To the knowledge of the Company, no
party
to an Arrangement relating to the use by the Company of any Intellectual
Property owned by another person is or has at any time been in breach of such
Arrangements. The Company has not granted or is not obligated to grant a
license, assignment or other right with respect to any Intellectual
Property.
(b) Know-How.
(i) The
Company owns or possesses sufficient legal rights to all Intellectual Property
necessary for the operation of its business as it is currently conducted except
where the failure to have such rights would not have a Material Adverse Effect
on the operations or financial condition of the Company. To the knowledge of
the
Company, it has not violated or, by conducting its business as presently
proposed, would violate any of the Intellectual Property Rights of any other
Person.
(ii) All
former and current employees of the Company have executed written Arrangements
with the Company that assign to the Company all rights to any inventions,
improvements, discoveries, or information relating to the business of Company.
To the knowledge of the Company, no employee of the Company has entered into
any
Arrangement that restricts or limits in any way the scope or type of work in
which the employee may be engaged or requires the employee to transfer, assign,
or disclose information concerning his or her work to anyone other than the
Company. No past or present shareholder, employee, director, officer,
contractor, agent or representative of the Company has any ownership interest
or
any other rights in or to any Intellectual Property. No Arrangement or
understanding exists between the Company and any third party which would impede
or prevent the continued use of such right, title and interest of Company in
and
to the Intellectual Property as the Company had prior to the Closing and used
in
the conduct of its business.
18
3.20 No
Brokers.
The
Company has not employed or authorized anyone to represent them as a broker,
finder or financial consultant in connection with the Transactions, and no
broker, finder, financial consultant or other person is entitled to any
commission, finder’s fee or consulting fee from the Company in connection with
the Transactions.
3.21 Bankruptcy.
Other
than the voluntary petition for relief under chapter 11 of title 11 of the
United States Code filed on March 28, 2003 (in which a plan of reorganization
was confirmed on November 29, 2004), the Company has neither filed a voluntary
bankruptcy petition nor been the subject of an involuntary bankruptcy petition
nor is the Company the subject of an action under state insolvency laws or
any
other relevant laws.
3.22 Criminal
Proceedings.
To the
knowledge of the Company, the Company and its officers, directors, affiliates,
promoters or any predecessor thereof have not been subject to or suffered any
of
the following:
(a) Any
conviction in a criminal proceeding or being subject to a pending criminal
proceeding (excluding traffic violations and other misdemeanor offenses) within
ten (10) years from the date hereof;
(b) Any
order, judgment or decree, not subsequently reversed, suspended or vacated,
of
any court of competent jurisdiction, permanently or temporarily enjoining,
barring, suspending or otherwise limiting such Person’s involvement in any type
of business, securities or banking activities; or
(c) Being
found guilty by a court of competent jurisdiction (in a civil action), the
SEC
or the Commodity Futures Trading Commission to have violated a federal or state
securities or commodities law, and the judgment has not been reversed, suspended
or vacated.
3.23 Consents
and Approvals.
All
actions required to be taken by the Company’s board of directors to authorize
the consummation of this Agreement and the Transactions have been duly and
validly taken by such boards of directors and no other consents or approvals
of
this Agreement or the Transactions shall be necessary.
3.24 State
Takeover Statutes.
The
Company’s board of directors has taken all action to ensure that any
restrictions on business combination do not apply to the
Transactions.
3.25 Disclosure.
No
representation or warranty contained in Article
III
of this
Agreement contains any untrue statement of a material fact or omits to state
a
material fact necessary to make the statements herein not misleading in the
context of such representations and warranties. There are no facts, conditions,
trends, claims, rights obligations or liabilities not specifically disclosed
in
this Article
III
which
have, or with the passage of time could have, a Material Adverse Effect on
the
operations, conditions, earnings, liabilities and prospects, whether financial
or otherwise, of the Company.
19
ARTICLE
IV
COVENANTS
OF THE PARTIES
4.1 Conduct
of Business
(a) During
the period from the date of this Agreement to the Closing Date, Anchor shall
conduct its businesses and engage in transactions permitted hereunder only
in
the ordinary course and consistent with prudent business practice, and shall
take no action that is inconsistent with the Agreement, except with the prior
consent of the Company, which consent may not be unreasonably withheld. Anchor
shall use all commercially reasonable efforts to (i) preserve its business
organization intact, (ii) keep available to itself the present services of
its employees and (iii) preserve for itself and the Company the goodwill of
its customers and others with whom business relationships exist.
(b) During
the period from the date of this Agreement to the Closing Date, the Company
shall conduct its business and engage in transactions permitted hereunder only
in the ordinary course and consistent with prudent business practice, and shall
take no action that is inconsistent with this Agreement, except with the prior
written consent of Anchor, which consent may not be unreasonably withheld.
The
Company shall conduct its operations in compliance with all applicable laws
and
regulations and shall each use all commercially reasonable efforts to preserve
its business organization intact.
(c) The
Parties hereto agree to treat the Exchange, together with the Private Placement
Transaction, as an exchange qualifying under Section 351(a) of the Internal
Revenue Code of 1986, as amended, and agree to file all tax returns, reports,
and attachments thereto in a manner consistent therewith.
4.2 Negative
Covenants
(a) During
the period from the date of this Agreement to the Closing Date, the Company
shall not engage in any transaction or take any action other than those
contemplated by this Agreement without the prior written consent of Anchor,
which consent may not be unreasonable withheld.
(b) The
Company, without limiting the generality of Section
4.2(a)
above,
further agrees, and Anchor agrees, that from the date hereof to the Closing
Date, except as otherwise approved by the Parties in writing, or as permitted
or
required by this Agreement, or as contemplated by the Company’s planned private
placement offering of its Series 1 Convertible Preferred Stock, they will
not:
(i) issue
or
sell any stock or other securities or any options, warrants or rights to acquire
any stock or other securities;
20
(ii) split,
combine or reclassify or change the terms of any shares of its capital stock;
or
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its capital
stock;
(iii) change
any provisions of their Governing Documents;
(iv) grant
any
severance or termination pay other than in the ordinary course of business
consistent with past practices and policies to, or enter into or amend any
employment agreement with, any of their directors, officers or employees; adopt
any new employee benefit plan or arrangement of any type or amend any such
existing benefit plan or arrangement; or award any increase in compensation
or
benefits to their directors, officers or employees except with respect to salary
increases and bonuses for employees in the ordinary course of business and
consistent with past practices and policies;
(v) sell
or
dispose of any substantial amount of assets or incur any significant liabilities
other than in the ordinary course of business consistent with past practices
and
policies;
(vi) make
any
capital expenditures outside of the ordinary course of business other than
pursuant to binding commitments existing on the date hereof and other than
expenditures necessary to maintain existing assets in good repair;
(vii) agree
to
acquire in any manner whatsoever (other than to realize upon collateral for
a
defaulted loan) any business or entity;
(viii) make
any
material change in its accounting methods or practices, other than changes
required in accordance with generally accepted accounting
principles;
(ix) make
any
loan or loan commitment to any of their stockholders;
(x) take,
cause to be taken or omit to take any action which would reasonably be expected
to prevent the Exchange, together with the Private Placement Transaction, from
qualifying as an exchange under Section 351(a) of the Code; or
(xi) agree
to
do any of the foregoing.
4.3 No
Solicitation
(a) Other
than the Placement Agent Agreement, Anchor and the Company shall not authorize
or permit any of their respective directors, officers or employees or any
investment banker, financial advisor, attorney, accountant or other
representative retained by them to: (i) solicit or initiate or take any other
action to facilitate or cause any inquiries or the making of any proposal from
any Person (other than the Parties hereto) relating to any transaction involving
the sale of the business or assets (other than in the ordinary course of
business) of such entity, or any of the capital stock of such entity, or any
merger, consolidation, business combination, recapitalization, sale or exchange
of all or a material amount of assets or any similar transaction or series
of
transactions involving such entity (a “Competing
Transaction”),
or
(ii) participate in any discussions or negotiations regarding any Competing
Transaction; provided, however, that if, at any time, the board of directors
of
such entity thereof determines in good faith, after consultation with such
legal, financial and other advisors as it deems appropriate, that it is
necessary to do so in order to act in a manner consistent with its fiduciary
duties under its applicable state laws, such entity or any affiliates thereof
may, prior to its having obtained the necessary written consents or approvals
to
the Exchange and the Transactions, and in response to a Competing Transaction
that was not solicited by it or that did not otherwise result from a breach
of
this Section
4.3(a),
(x)
furnish non-public information with respect to such entity to any Person making
a Competing Transaction pursuant to a confidentiality agreement and (y)
participate in discussions or negotiations regarding, and enter into and
consummate a Competing Transaction.
21
(b) The
Parties shall keep each other reasonably informed of the status and details
(including amendments and proposed amendments) of any such request or Competing
Transaction. A Party may not accept a Competing Transaction from any Person,
nor
may it terminate this Agreement, unless it has provided the other Parties at
least four (4) calendar days notice of the exact terms of the Competing
Transaction, including a copy of the proposed agreement.
4.4 Current
Information.
During
the period from the date of this Agreement to the Closing Date, each Party
to
this Agreement agrees to confer with each other Party to this Agreement on
a
reasonable basis as requested by each other Party, regarding their business,
operations, properties, assets and financial condition and matters relating
to
the completion of the Transactions.
4.5 Access
to Properties and Records; Confidentiality
(a) During
the period from the date of this Agreement to the Closing Date, each Party
hereto agrees to permit each other Party and its agents and representatives,
including, without limitation, officers, directors, employees, attorneys,
accountants and financial advisors (collectively, “Representatives”)
reasonable access to their respective properties, and to disclose and make
available to each other Party and its Representatives, as the case may be,
all
books, papers and records relating to their respective assets, stock ownership,
properties, operations, obligations and liabilities, including, but not limited
to, all books of account (including the general ledger), tax records, minute
books of directors’ and stockholders’ meetings, organizational documents,
bylaws, material contracts and agreements, filings with any regulatory
authority, independent auditors’ work papers (subject to the receipt by such
auditors of a standard access representation letter), litigation files, plans
affecting employees, and any other business activities or prospects in which
each Party and its Representatives may have a reasonable interest.
(b) All
information previously furnished by the Parties hereto in connection with the
Transactions, shall be kept confidential and shall be treated as the sole
property of the Party delivering the information until consummation of the
Transactions contemplated hereby and, if the Transactions shall not occur,
each
Party and each Party’s Representatives shall return to the other Party all
documents or other materials containing, reflecting or referring to such
information, will not retain any copies of such information, shall keep
confidential all such information, and shall not directly or indirectly use
such
information for any competitive or commercial purposes or any other purpose
not
expressly permitted hereby. The obligation to keep such information confidential
shall continue for sixty (60) months from the date this Agreement is terminated
or abandoned.
22
(c) In
addition to all other remedies that may be available to any Party hereto in
connection with a breach by any other Party hereto of its or its
Representative’s obligations under this Section
4.4,
each
Party hereto shall be entitled to specific performance and injunctive and other
equitable relief with respect to this Section
4.4.
Each
Party hereto waives, and agrees to use all reasonable efforts to cause its
Representatives to waive, any requirement to secure or post a bond in connection
with any such relief.
4.6 Regulatory
Matters
(a) The
Parties hereto will cooperate with each other and use all reasonable efforts
to
prepare all necessary documentation, to effect all necessary filings and to
obtain all necessary permits, consents, approvals and authorizations of all
third parties and governmental bodies necessary to consummate the Transactions
as soon as possible. The Parties shall each have the right to review in advance
and comment on all information relating to the other, as the case may be, which
appears in any filing made with, or written material submitted to, any third
party or governmental body in connection with the Transactions.
(b) Each
of
the Parties will promptly furnish each other with copies of written
communications received by them from, or delivered by any of the foregoing
to,
any governmental body in respect of the Transactions.
4.7 Further
Assurances.
Subject
to the terms and conditions herein provided, each of the Parties hereto agrees
to use all reasonable efforts to take, or cause to be taken, all actions and
to
do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable laws and regulations to satisfy the conditions to Closing
and
to consummate and make effective the Transactions, including, without
limitation, using reasonable efforts to lift or rescind any injunction or
restraining order or other order adversely affecting the ability of the Parties
to consummate the Transactions and using all reasonable efforts to prevent
the
breach of any representation, warranty, covenant or agreement of such Party
contained or referred to in this Agreement and to promptly remedy the same.
Nothing in this Section
4.7
shall be
construed to require any Party to participate in any threatened or actual Legal
Proceedings (other than Legal Proceedings to which it is otherwise a party
or
subject or threatened to be made a party or subject) in connection with
consummation of the Transactions unless such Party shall consent in advance
and
in writing to such participation and the other Party agrees to reimburse and
indemnify such Party for and against any and all costs and damages related
thereto.
23
4.8 Public
Announcemen.
The
Parties hereto shall cooperate with each other in the development and
distribution of all news releases and other public disclosures with respect
to
this Agreement or any of the Transactions, except as may be otherwise required
by law or regulation or as to which the Party releasing such information has
used all reasonable efforts to discuss with the other Party in
advance.
4.9 Failure
to Fulfill Conditions.
The
Parties agree to take all commercially reasonable efforts to cause the Closing
to occur on or before midnight, eastern time, on March 31, 2007 (the
“Termination
Date”).
In
the event that Anchor or the Company reasonably determines that a material
condition to its obligation to consummate the Transactions cannot be fulfilled
on or prior to the Termination Date, and that it will not waive that condition,
it will promptly notify the other Parties. Anchor and the Company will promptly
inform the other Parties of any facts applicable to Anchor or the Company,
respectively, or their respective directors or officers, that would be likely
to
prevent or materially delay approval of the Exchange by any governmental
authority or which would otherwise prevent or materially delay completion of
the
Exchange or the Closing.
4.10 Disclosure
Supplements.
Each
Party hereto will promptly supplement or amend (by written notice to the other
Parties hereto) its respective Disclosure Schedules delivered pursuant hereto
with respect to any matter hereafter arising which, if existing, occurring
or
known at the date of this Agreement, would have been required to be set forth
or
described in such Disclosure Schedules or which is necessary to correct any
information in such Disclosure Schedules which has been rendered materially
inaccurate thereby. For the purpose of determining satisfaction of the
conditions set forth in Article
V
and
Article
VI,
no
supplement or amendment to such Disclosure Schedules shall correct or cure
any
warranty which was untrue when made, but supplements or amendments may be used
to disclose subsequent facts or events to maintain the truthfulness of any
warranty.
ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS
OF
ANCHOR
The
obligations of Anchor to consummate the Exchange and the Transactions are
subject to the fulfillment or satisfaction, on and as of the Closing, of each
of
the following conditions (any one or more of which may be waived by Anchor
in
its sole discretion, but only in a writing signed by Anchor):
5.1 Accuracy
of Representations and Warranties.
The
representations and warranties of the Company and the Company Stockholders
contained in this Agreement that are qualified as to materiality shall be true
and correct in all respects, and all other representations and warranties of
the
Company and the Company Stockholders contained in this Agreement shall be true
and correct in all material respects, in each case as of the date of this
Agreement and as of the Closing as though made on and as of the Closing Date,
except to the extent such representations and warranties are expressly stated
to
be made as of a particular date (in which case such representations and
warranties shall be true and correct as of such date).
24
5.2 Government
Consents.
There
shall have been obtained at or prior to the Closing Date such permits and/or
authorizations, and there shall have been taken such other action by any
regulatory authority having jurisdiction over the Parties and the actions herein
proposed to be taken, as may be required to lawfully consummate the Exchange
and
the Transactions and for Anchor to continue to conduct its business as presently
conducted, including but not limited to requirements under applicable U.S.
securities, corporations, and investment laws.
5.3 Documents.
The
Company and the Company Stockholders must have caused the following documents
to
be delivered to Anchor:
(a) a
certificate of the Secretary of State and the taxing authorities of the State
of
Delaware, dated not more than five (5) days prior to the Closing Date, attesting
to the legal existence and good standing of the Company in Delaware and to
the
payment of all state taxes due and owing thereby;
(b) certificates
of the relevant Secretary of State and taxing authorities, dated as of the
most
recent date practicable, attesting to the legal existence and good standing
of
the Company and to the payment of all state taxes due and owing thereby in
each
jurisdiction in which the Company has registered with the Secretary of State
thereof to do business as a foreign corporation; and
(c) a
certificate signed by the Company Stockholders certifying as to (i) the
incumbency of officers of the Company, (ii) the authenticity of the resolutions
of the board of directors of the Company approving and authorizing the
execution, delivery and performance of this Agreement, the Transactions and
the
Exchange; and (iii) the authenticity and continuing validity of the certificate
of incorporation and bylaws of the Company.
5.4 Private
Placement
(a) Prior
to
the Closing Date, Anchor (i) shall have received copies of executed subscription
agreements for the purchase and sale of equity securities of the Company in
private placement transactions resulting in gross proceeds to the Company of
at
least (US) $2,500,000.00 (“Private
Placement”
and
together with any subsequent issuances of Company equity securities offered
under the Private Placement Memorandum used by Company in connection with the
Private Placement, the “Private
Placement Transaction”)
and
(ii) shall have been notified by American Stock Transfer & Trust Company,
the escrow agent for the Private Placement, that there is at least (US)
$2,500,000.00 in cleared funds available for closing the Private Placement;
provided, however, that the Private Placement shall not close prior to the
Closing hereunder.
(b) The
terms
and conditions of the equity securities to be offered and sold pursuant to
the
Private Placement shall not be materially different than as set forth in the
attached Schedule 5.4(b).
Any
changes, amendments or modifications to the purchase price, the per share
conversion price, the voting rights, the anti-dilution and liquidity events,
or
the rights and preferences of the equity securities, as set forth in the
attached Schedule 5.4(b),
shall
be conclusively deemed to be materially different.
25
(c) The
terms
and conditions of the warrants exercisable for Common Stock to be issued to
the
Placement Agent in connection with Private Placement Transaction and the
1,960,000 options exercisable for Common Stock to be issued to Company
management in connection with the Private Placement Transaction, in each case
as
more fully described in the Private Placement Memorandum used by Company in
connection with the Private Placement, shall not be materially different than
the terms and conditions set forth on the attached Schedule 5.4(c).
Any
changes, amendments or modifications to the exercise price, the term of the
option, the anti-dilution, or the rights and preferences of the equity
securities for which the warrant or option is exercisable for, as set forth
on
the attached Schedule 5.4(c),
shall
be conclusively deemed to be materially different.
5.5 Corporate
Approvals.
All
member and other proceedings required to be taken to authorize Anchor to carry
out this Agreement and the Transactions shall have been taken.
5.6 Employment
Agreements and Director Compensation Agreement.
The
Company shall have entered into employment agreements with Xxxxx Xxxxx and
Xxxx
Xxxxxxxxx in the form of Exhibit
B-1
and
B-2,
respectively, and a director compensation agreement with Xxxxxx Xxxxx in the
form of Exhibit
B-3,
and
such agreements shall be in full force and effect.
5.7 No
Proceedings.
Since
the date of this Agreement, there must not have been commenced, and the Company
shall not have received notice threatening, any Legal Proceeding against the
Company, or against any Person affiliated with the Company, that (a) seeks
damages or other relief in connection with any of the Transactions which is
material to the Company, or (b) may have the effect of preventing,
delaying, making illegal, or otherwise interfering with any of the Transactions.
5.8 No
Injunctions or Restraints.
No
judgment, order, decree, statute, law, ordinance, rule or regulation, entered,
enacted, promulgated, enforced or issued by any court or other governmental
entity of competent jurisdiction or other legal restraint or prohibition
(collectively, “Restraints”)
affecting the Closing or seeking to prohibit the Transactions shall be in
effect; provided, however, that each of the Parties shall have used its
commercially reasonable efforts to prevent the entry of any such Restraints
and
to appeal as promptly as possible any such Restraints that may be entered.
5.9 No
Stop Order.
No
judicial, legal or administrative hearing or investigation shall have been
initiated or threatened against any of the Parties relating the Exchange, the
Private Placement or any of the other actions or Transactions described herein,
and no stop order suspending the Private Placement shall have been issued by
the
SEC or any state securities administrator, and no proceeding for that or any
other purpose shall have been initiated or threatened by the SEC or any state
securities administrator against any of the Parties to this Agreement or which
could otherwise affect the Company.
5.10 Placement
Agent Agreement.
Anchor
shall, in its sole and absolute discretion, have approved the provisions of
the
placement agent agreement entered into between Fordham Financial Management,
Inc. and the Company (the “Placement
Agent Agreement”)
and
all other agreements entered into by the Company regarding the sale of shares
of
the Company’s equity securities in the Private Placement.
26
5.11 Directors
and Officers.
Each
director and officer of the Company immediately prior to the Closing shall
have
resigned from such position(s) in writing to the Company, such resignations
to
be effective as of the Closing. The Company shall have taken such corporate
action as is necessary to elect Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxx Xxxxxxxxx,
Xxxxx
XxXxxx and Xxxxxxx Xxxxxxx as the directors of the Company effective as of
the
Closing.
5.12 Filings
and Notifications Mandated By Plan of Reorganization.
Promptly after the Closing, the Company shall make all necessary filings with
the bankruptcy court to indicate that the Exchange has been completed and cause
to be delivered all notifications required pursuant to the terms of that certain
plan of reorganization, confirmed on November 29, 2004, applicable to the
Company.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS
OF
THE COMPANY
The
obligations of the Company to consummate the Exchange and the Transactions
are
subject to the fulfillment or satisfaction, on and as of the Closing, of each
of
the following conditions (any one or more of which may be waived by the Company
in its sole discretion, but only in a writing signed the Company):
6.1 Government
Consents.
There
shall have been obtained at or prior to the Closing Date such permits and/or
authorizations, and there shall have been taken such other action by any
regulatory authority having jurisdiction over the Parties and the actions herein
proposed to be taken, as may be required to lawfully consummate the
Transactions, including but not limited to requirements under applicable U.S.
securities, corporations, and investment laws.
6.2 Documents.
Anchor
must have caused the following documents to be delivered to the
Company:
(a) a
certificate of the Secretary of State of the State of North Carolina, dated
not
more than five (5) days prior to the Closing Date, attesting to the legal
existence and good standing of Anchor in North Carolina;
(b) a
certificate signed by a duly authorized officer of Anchor certifying as to
(i)
the incumbency of officers of Anchor, (ii) the authenticity of the resolutions
of the members of Anchor approving and authorizing the execution, delivery
and
performance of this Agreement, the Transactions and the Exchange, as applicable
(and approving a new Schedule
1
to
Anchor’s operating agreement reflecting the Exchange); and (iii) the
authenticity and continuing validity of the articles of organization and
operating agreement of Anchor; and
(c) an
Assignment of Membership Interest executed by each Anchor Member and dated
as of
the Closing Date evidencing the sale of the Units being sold by such Anchor
Member in the Exchange pursuant to Section 1.1.
6.3 No
Proceedings.
Since
the date of this Agreement, there must not have been commenced, and the Company
shall not have received notice threatening, any Legal Proceeding against Anchor,
or against any Person affiliated with Anchor that (a) seeks damages or other
relief in connection with any of the Transactions which is material to Anchor,
or (b) may have the effect of preventing, delaying, making illegal, or
otherwise interfering with any of the Transactions.
27
6.4 No
Injunctions or Restraints.
No
Restraints affecting the Closing or seeking to prohibit the Transactions shall
be in effect; provided, however, that each of the Parties shall have used its
commercially reasonable efforts to prevent the entry of any such Restraints
and
to appeal as promptly as possible any such Restraints that may be entered.
6.5 Lock-Up
Agreements.
The
members of Anchor listed shall have executed and delivered Lock-Up Agreements
in
the form attached hereto as Exhibit
C,
pursuant to which such Persons will agree not to offer, sell, assign, transfer,
pledge, contract to sell or otherwise dispose of any shares of Company Common
Stock or securities convertible into or exercisable or exchangeable for Company
Common Stock, which such Persons acquired as consideration pursuant to this
Agreement for a period of 18 months following the Closing Date.
ARTICLE
VII
INDEMNIFICATION
AND REMEDIES
7.1 Indemnification
by the Company Stockholders
(a) Halter
Financial Investments, L.P. shall indemnify, defend and hold harmless the Anchor
Indemnitees from, against and in respect of any Damages arising, directly or
indirectly, from or in connection with (i) the operation or ownership of the
Company from and including November 29, 2004 through and including December
7,
2006 (the “Operating
Period”),
including, without limitation, any liability for any Tax imposed on or related
to the Company with respect to the Operating Period, (ii) any breach of any
representation or warranty of the Company or Halter Financial Investments,
L.P.
contained in this Agreement or any certificate or instrument furnished by the
Company or the Company Stockholders to Anchor pursuant to this Agreement
resulting from the operation or ownership of the Company during the Operating
Period, (iii) any failure to perform any covenant of Halter Financial
Investments, L.P., as a Company Stockholder, contained in this Agreement or
any
certificate or instrument furnished by the Company or the Company Stockholders
to Anchor pursuant to this Agreement, or (iv) any claim by any Person for
brokerage or finder’s fees or commissions or similar payments based upon any
agreement or understanding alleged to have been made by such Person with Halter
Financial Group, Inc. (or any Person acting on behalf of Halter Financial Group,
Inc.) in connection with the transactions contemplated by this
Agreement.
(b) Benchmark
Equity Group, Inc., Xxxxxxx Xxxxxx and Xxxxx DeLpae shall, jointly and
severally, indemnify, defend and hold harmless the Anchor Indemnitees from,
against and in respect of any Damages arising, directly or indirectly, from
or
in connection with (i) the operation or ownership of the Company from December
8, 2006 through and including the Closing Date (the “Ownership
Period”),
including, without limitation, any liability for any Tax imposed on or related
to the Company with respect to the Ownership Period, (ii) any breach of any
representation or warranty of the Company, Benchmark Equity Group, Inc., Xxxxxxx
Xxxxxx or Xxxxx XxXxxx contained in this Agreement or any certificate or
instrument furnished by the Company or the Company Stockholders to Anchor
pursuant to this Agreement resulting from the operation or ownership of the
Company during the Ownership Period, (iii) any failure to perform any covenant
of the Company or Benchmark Equity Group, Inc., Xxxxxxx Xxxxxx or Xxxxx XxXxxx,
as Company Stockholders, contained in this Agreement or any certificate or
instrument furnished by the Company or the Company Stockholders to Anchor
pursuant to this Agreement, or (iv) any claim by any Person for brokerage or
finder’s fees or commissions or similar payments based upon any agreement or
understanding alleged to have been made by such Person with the Company,
Benchmark Equity Group, Inc., Xxxxxxx Xxxxxx or Xxxxx XxXxxx (or any Person
acting on behalf of the Company, Benchmark Equity Group, Inc., Xxxxxxx Xxxxxx
or
Xxxxx XxXxxx) in connection with the transactions contemplated by this
Agreement.
28
7.2 Indemnification
Claims
(a) In
order
to seek indemnification under this Article
VII,
the
Anchor Indemnitee shall deliver a written notification Claim Notice to one
or
more of the applicable Company Stockholders (the “Indemnifying
Party”).
(b) Within
20
days after delivery of a Claim Notice, the Indemnifying Party shall deliver
to
the Anchor Indemnitee a Response, in which the Indemnifying Party shall:
(i) agree that the Anchor Indemnitee is entitled to receive all of the
Claimed Amount (in which case the Response shall be accompanied by a payment
by
the Indemnifying Party to the Anchor Indemnitee of the Claimed Amount, by check
or by wire transfer); (ii) agree that the Anchor Indemnitee is entitled to
receive the Agreed Amount (in which case the Response shall be accompanied
by a
payment by the Indemnifying Party to the Anchor Indemnitee of the Agreed Amount,
by check or by wire transfer); or (iii) dispute that the Anchor Indemnitee
is entitled to receive any of the Claimed Amount.
(c) During
the 30-day period following the delivery of a Response that reflects a Dispute,
the Indemnifying Party and the Anchor Indemnitee shall use good faith efforts
to
resolve the Dispute. If the Dispute is not resolved within such 30-day period,
such Dispute shall be resolved in accordance with Section
9.3.
7.3 Survival
of Representations and Warranties
(a) All
representations and warranties of the Company and the Company Stockholders
that
are covered by the indemnification agreements in Sections
7.1(a)
and
(b)
shall
(i) survive the Closing and (ii) shall expire on the date one (1) year
following the Closing Date. If the Anchor Indemnitee delivers to the Company
Stockholders, before expiration of a representation or warranty, either a Claim
Notice based upon a breach of such representation or warranty, or an Expected
Claim Notice based upon a breach of such representation or warranty, then the
applicable representation or warranty shall survive until, but only for purposes
of, the resolution of the matter covered by such notice. If the Legal Proceeding
or written claim with respect to which an Expected Claim Notice has been given
is definitively withdrawn or resolved in favor of the Anchor Indemnitee, the
Anchor Indemnitee shall promptly so notify the Company Stockholders.
(b) The
rights to indemnification set forth in this Article
VII
shall
not be affected by (i) any investigation conducted by or on behalf of Anchor
or
any knowledge acquired (or capable of being acquired) by Anchor, whether before
or after the date of this Agreement or the Closing Date (including through
supplements to the Disclosure Schedule permitted by Section
4.10),
with
respect to the inaccuracy or noncompliance with any representation, warranty,
covenant or obligation which is the subject of indemnification hereunder or
(ii)
any waiver by Anchor of any closing condition relating to the accuracy of
representations and warranties or the performance of or compliance with
agreements and covenants.
29
7.4 Limitations
(a) For
purposes solely of this Article
VII,
all
representations and warranties of the Company and the Company Stockholders
in
Article
III
(other
than Sections
3.6
and
3.25
shall be
construed as if the term “material” and any reference to “Material Adverse
Effect” (and variations thereof) were omitted from such representations and
warranties.
(b) No
Company Stockholder shall have any right of contribution against the Company
with respect to any breach by the Company of any of its representations,
warranties, covenants or agreements.
7.5 Certain
Definitions.
As used
herein, the following terms shall have the respective meanings set forth
below:
(a) “Agreed
Amount”
shall
mean part, but not all, of the Claim Amount.
(b) “Anchor
Indemnitees”
shall
mean Anchor and, after the Closing, the Company and Anchor, the former members
of Anchor, and their respective officers, directors, employees, attorneys,
representatives, stockholders, controlling persons, and affiliates.
(c) “Claim
Notice”
shall
mean written notification which contains (i) a description of the Damages
incurred or reasonably expected to be incurred by the Anchor Indemnitee and
the
Claimed Amount of such Damages, to the extent then known, (ii) a statement
that
the Anchor Indemnitee is entitled to indemnification under Article
VII
of the
Agreement for such Damages and a reasonable explanation of the basis therefor,
and (iii) a demand for payment in the amount of such Damages.
(d) “Claimed
Amount”
shall
mean the amount of any Damages incurred or reasonably expected to be incurred
by
the Anchor Indemnitee.
(e) “Damages”
shall
mean any demand, loss, liability (whether absolute, accrued, contingent, fixed
or otherwise, or whether known or unknown, or due or to become due or
otherwise), claim, damage (including incidental and consequential), fine, tax,
action, suit, judgment, expense (including amounts paid in settlement, interest,
court costs, fees and expenses of attorneys, accountants, investigators, experts
and other expenses of litigation, including in connection with the assertion
of
rights under, or the enforcement of, this Agreement) or diminution of value,
whether or not involving a third-party claim, whether disputed or
not.
30
(f) “Dispute”
shall
mean the dispute resulting if the Company Stockholders in a Response disputes
their liability for all or part of the Claimed Amount.
(g) “Response”
shall
mean a written response by the Company Stockholders in reply to a Claim Notice,
in which the Company Stockholders: (i) agree that the Anchor Indemnitee is
entitled to receive all of the Claimed Amount; (ii) agree that the Anchor
Indemnitee is entitled to receive the Agreed Amount; or (iii) dispute that
the Anchor Indemnitee is entitled to receive any of the Claimed Amount. Such
written response shall include a reasonable explanation of the basis for any
Dispute.
ARTICLE
VIII
TERMINATION
OF AGREEMENT
8.1 Termination.
This
Agreement may be terminated at any time prior to or at the Closing:
(a) By
the
mutual written consent of the Company and Anchor;
(b) By
the
Company, if the conditions precedent set forth in Article
VI
shall
not have been complied with, waived or performed and such noncompliance or
nonperformance shall not have been cured or eliminated (or by its nature cannot
be cured or eliminated) on or before the Termination Date;
(c) By
Anchor, if the conditions precedent set forth in Article
V
shall
not have been complied with, waived or performed and such noncompliance or
nonperformance shall not have been cured or eliminated (or by its nature cannot
be cured or eliminated) on or before the Termination Date;
(d) By
Anchor, if any material item of disclosure or information obtained during
Anchor’s ongoing due diligence investigation of the Company shall warrant
termination of this Agreement and the Transactions, as determined in Anchor’s
reasonable discretion using any relevant information;
(e) By
the
Company or Anchor if the Closing Date shall not have occurred on or prior to
the
Termination Date unless the failure of such occurrence shall be due to the
failure of the Party seeking to terminate this Agreement to perform or observe
its agreements set forth herein to be performed or observed by such Party at
or
before the Closing Date;
(f) By
any
Party, upon written notice to the other Parties if any application for
regulatory or governmental approval necessary to consummate the Transactions
shall have been denied or withdrawn at the request or recommendation of the
applicable regulatory agency or governmental authority or such application
is
approved with conditions which materially impair the value of Anchor, taken
as a
whole, to the Company;
(g) By
the
Company, if (i) there shall have occurred a Material Adverse Change in Anchor
following the date of this Agreement, or (ii) there was a material breach in
any
representation, warranty, covenant, agreement or obligation of Anchor hereunder
and such breach shall not have been remedied within thirty (30) days after
receipt by Anchor of notice in writing from the Company specifying the nature
of
such breach and requesting that it be remedied; or
31
(h) By
Anchor, if (i) there shall have occurred a Material Adverse Change in the
Company following the date of this Agreement, or (ii) there was a material
breach in any representation, warranty, covenant, agreement or obligation of
the
Company or Company Stockholders hereunder and such breach shall not have been
remedied within thirty (30) days after receipt by such breaching Party of notice
in writing from Anchor specifying the nature of such breach and requesting
that
it be remedied.
Except
as
otherwise specifically set forth herein, any termination of this Agreement
under
this Section
8.1
will be
effective by the delivery of notice of the terminating Party to the other
Parties hereto.
8.2 No
Liability for Proper Termination.
Any
termination of this Agreement in accordance with this Article
VIII
will be
without further obligation or liability upon any Party in favor of the other
Party hereto or to its stockholders, directors or officers; provided, however,
that nothing herein will limit the obligation of any Party for any willful
breach hereof or failure to use their reasonable best efforts to cause the
Transactions to be consummated. In the event of the termination of this
Agreement pursuant to this Article
VIII,
this
Agreement shall thereafter become void and have no effect and each Party shall
be responsible for its own expenses incurred in connection
herewith.
ARTICLE
IX
MISCELLANEOUS
9.1 Nonsurvival
of Representations, Warranties and Agreements of Anchor.
None of
the representations, warranties and agreements of Anchor contained in this
Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Closing, except for the agreements contained in Article
I,
Article
VII
and
Article
IX
of this
Agreement.
9.2 Governing
Law.
This
Agreement and the legal relations among the Parties hereto shall be governed
by
and construed in accordance with the laws of the State of Delaware without
regard to any choice of conflicts of law doctrine (whether of the State of
Delaware or any other jurisdiction).
9.3 Submission
to Jurisdiction.
Each of
the Parties (a) consents to submit itself to the personal jurisdiction of
any court sitting in Mecklenburg County or in the United States District Court
for the Western District of North Carolina, in any action or proceeding arising
out of or relating to this Agreement or any Transaction, (b) agrees that
all claims in respect of such action or proceeding may be heard and determined
in any such court, (c) agrees that it shall not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
and (d) agrees not to bring any action or proceeding arising out of or
relating to this Agreement or any Transaction in any other court. Each of the
Parties waives any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety or other security
that might be required of any other party with respect thereto. Any Party may
make service on another Party by sending or delivering a copy of the process
to
the Party to be served at the address and in the manner provided for the giving
of notices in Section 9.9.
Nothing
in this Section
9.3,
however, shall affect the right of any Party to serve legal process in any
other
manner permitted by law.
32
9.4 Waiver
of Jury Trial.
EACH OF
THE COMPANY, ANCHOR AND THE COMPANY STOCKHOLDERS HEREBY IRREVOCABLY WAIVES
ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR
THE TRANSACTIONS OR THE ACTIONS OF THE COMPANY, ANCHOR OR THE COMPANY
STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
OF
THIS AGREEMENT.
9.5 Assignment;
Binding Upon Successors and Assigns.
No
Party hereto may assign any of its rights or obligations hereunder without
the
prior written consent of the other Parties hereto. This Agreement will be
binding upon and inure to the benefit of the Parties hereto and their respective
successors and permitted assigns.
9.6 Severability.
If any
provision of this Agreement, or the application thereof, will for any reason
and
to any extent be invalid or unenforceable, the remainder of this Agreement
and
application of such provision to other persons or circumstances will be
interpreted so as reasonably to effect the intent of the Parties hereto so
long
as the economic or legal substance of the Transactions is not affected in any
manner materially adverse to any Party. The Parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision.
9.7 Expenses.
Each
Party will bear its respective expenses and legal fees incurred with respect
to
this Agreement, and the transactions contemplated hereby.
9.8 Attorneys’
Fees.
Should
a suit be brought to enforce or interpret any part of this Agreement, the
prevailing Party will be entitled to recover, as an element of the costs of
suit
and not as damages, reasonable attorneys’ fees to be fixed by the court
rendering the judgment (including without limitation, costs, expenses and fees
on any appeal). The prevailing Party will be entitled to recover its costs
of
the suit, regardless of whether such suit proceeds to final
judgment.
9.9 Notices.
All
notices and other communications required or permitted under this Agreement
will
be in writing and will be either hand delivered in person, sent by telecopier,
sent by certified or registered first class mail, postage pre-paid, or sent
by
nationally recognized express courier service. Such notices and other
communications will be effective upon receipt if hand delivered or sent by
telecopier, five (5) days after mailing if sent by mail, and one (1) day after
dispatch if sent by express overnight courier, to the following addresses,
or to
such other addresses or fax number as any Party may notify the other Parties
in
accordance with this Section
11.9:
33
If
to the
Company or a Company Stockholder other than Xxxxxxx Xxxxxx:
c/o
Benchmark Equity Group
000
Xxxxxx, Xxxxx 000,
Xxxxxxx,
XX 00000
If
to
Xxxxxxx Xxxxxx:
Fordham
Financial Management, Inc.
00
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
With
copy
to:
Xxxxx
& Xxxxx, PLC
0000
Xxx
Xxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxx
If
to
Anchor:
Anchor
Funding Services, LLC
0000
Xxxxxxxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
With
copy
to:
Xxxxxxx
Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Hearst
Tower, 47th Floor
000
Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxx
9.10 Entire
Agreement.
This
Agreement (including the documents referred to herein) and the exhibits and
schedules hereto constitute the entire understanding and agreement of the
Parties hereto with respect to the subject matter hereof and supersede all
prior
and contemporaneous agreements or understandings, inducements or conditions,
express or implied, written or oral, between the Parties with respect hereto.
The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof. Neither this
Agreement nor any uncertainty or ambiguity herein will be construed or resolved
against any Party, whether under any rule of construction or otherwise. None
of
the Parties hereto shall be considered the draftsman. The Parties acknowledge
and agree that this Agreement has been reviewed, negotiated and accepted by
all
Parties and their attorneys, and will be construed and interpreted according
to
the ordinary meaning of the words used so to fairly accomplish the purposes
and
intentions of the Parties.
34
9.11 Amendment.
The
Parties may mutually amend any provision of this Agreement at any time prior
to
Closing. No amendment of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by all of the Parties.
9.12 Extension;
Waiver.
The
Parties may, at any time prior to the Closing Date, (i) extend the time for
the performance of any of the obligations or other acts of the other Parties
hereto; (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant thereto; or (iii) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of any Party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
Party against which the waiver is sought to be enforced. No waiver by any Party
with respect to any default, misrepresentation or breach of warranty or covenant
hereunder shall be deemed to extend to any prior or subsequent default,
misrepresentation or breach of warranty or covenant hereunder or affect in
any
way any rights arising by virtue of any prior or subsequent such occurrence.
9.13 Counterparts
and Facsimile Signature.
This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and each of which shall be deemed an
original. This Agreement may be executed by facsimile signature.
9.14 Descriptive
Headings.
The
descriptive headings of this Agreement are for convenience only and shall not
control or affect the meaning or construction of any provision of this
Agreement.
9.15 No
Third Party Beneficiaries.
Nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the Parties hereto or their respective successors and permitted
assigns, any rights, remedies, obligations or liabilities under or by reason
of
this Agreement; provided, however, the provisions of Article
VII
concerning indemnification are intended are intended for the benefit of the
individuals specified therein.
9.16 Specific
Performance.
The
Parties acknowledge that if any of the Parties refuse to perform under the
provisions of this Agreement, monetary damages alone will not be adequate to
compensate the other Parties to this Agreement. Each Party shall therefore
be
entitled, in addition to any other remedies that may be available, to obtain
specific performance of the terms of this Agreement. If any action is brought
by
a Party to enforce this Agreement, each other Party shall waive the defense
that
there is an adequate remedy at law. In the event of a default by any Party
to
this Agreement which results in the filing of a lawsuit for damages, specific
performance, or other remedies, each non-defaulting Party shall be entitled
to
joint and several reimbursement from the defaulting Parties of all reasonable
legal fees and expenses incurred by the non-defaulting Parties.
9.17 Joint
Preparation.
This
Agreement has been prepared and extensively negotiated by all Parties hereto
with the assistance and input of their respective attorneys, and therefore
no
ambiguity herein shall be construed for or against any Party based upon the
identity of the author of this Agreement or any portion hereof.
35
9.18 Drafting
Ambiguities.
When a
reference is made in this Agreement to an Article, Section, Exhibit, Schedule
or
Appendix, such reference shall be to an Article or Section of, or an Exhibit,
Schedule or Appendix to, this Agreement unless otherwise indicated. The table
of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words “include”, “includes” or “including” are used in
this Agreement, they shall be deemed to be followed by the words “without
limitation”. The words “hereof”, “herein” and “hereunder” and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and
not to any particular provision of this Agreement. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession
of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a Person are also to its
permitted successors and assigns.
[SIGNATURE
PAGE FOLLOWS]
36
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered, all as of the day and year first above
written.
|
BTHC
XI , INC.
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxxx | |
|
Name: Xxxx Xxxxxxxxx |
||
| Title: President | ||
| ANCHOR FUNDING SERVICES, LLC | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxx | |
|
Name: Xxxxx Xxxxx |
||
| Title: Member | ||
37
COMPANY
STOCKHOLDERS:
|
BENCHMARK
EQUITY GROUP, INC.
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
Xxxxx Xxxxxx |
||
| Title | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxx | |
|
XXXXXXX XXXXXX |
||
|
HALTER
FINANCIAL INVESTMENTS, L.P.
|
||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Name: Xxxxxxx X. Xxxxxx |
||
|
Title: Chairman
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
XXXXX XXXXXX |
||
38
EXHIBIT
A-1
Anchor
Members
Xxxxxx
Xxxxxxxxx
Xxxxxx
Xxxxx
Xxxxx
Xxxxx
39
EXHIBIT
A-2
Company
Stockholders
Benchmark
Equity Group, Inc.
Xxxxxxx
Xxxxxx
Halter
Financial Investments, L.P.
Xxxxx
XxXxxx
40
EXHIBIT
B-1
Xxxxx
Xxxxx Employment Agreement
41
EXHIBIT
B-2
Xxxx
Xxxxxxxxx Employment Agreement
42
EXHIBIT
B-3
Xxxxxx
Xxxxx Director Compensation Agreement
43
EXHIBIT
C
Form
of
Lock-up Agreement
44
among
BTHC
XI ,
Inc.,
ANCHOR
FUNDING SERVICES, LLC,
THOSE
MEMBERS OF ANCHOR FUNDING SERVICES, LLC
IDENTIFIED
ON EXHIBIT A-1 HERETO
and
THOSE
STOCKHOLDERS OF BTHC
XI,
INC.
IDENTIFIED
ON EXHIBIT A-2 HERETO
Dated
January
31, 2007
45
|
ARTICLE
I SECURITIES EXCHANGE
|
1
|
|
|
1.1
|
The
Exchange
|
1
|
|
1.2
|
Closing
|
1
|
|
1.3
|
Tax
Treatment
|
1
|
|
1.4
|
Certain
Definitions
|
2
|
|
ARTICLE
II REPRESENTATIONS AND WARRANTIES OF ANCHOR
|
3 | |
|
2.1
|
Organization
and Good Standing
|
3
|
|
2.2
|
Capitalization
|
3
|
|
2.3
|
Authority;
No Violation
|
3
|
|
2.4
|
Financial
Statements
|
3
|
|
2.5
|
Absence
of Certain Changes or Events
|
3
|
|
2.6
|
Legal
Proceedings
|
3
|
|
2.7
|
Taxes
and Tax Returns
|
3
|
|
2.8
|
Employee
Benefit Plans
|
3
|
|
2.9
|
Compliance
with Applicable Law
|
3
|
|
2.10
|
Certain
Contracts
|
3
|
|
2.11
|
Properties
and Insurance
|
3
|
|
2.12
|
Minute
Books
|
3
|
|
2.13
|
Environmental
Matters
|
3
|
|
2.14
|
Agreements
with Governmental Entity
|
3
|
|
2.15
|
Labor
Disputes
|
3
|
|
2.16
|
Loans,
Etc
|
3
|
|
2.17
|
Intellectual
Property
|
3
|
|
2.18
|
No
Brokers
|
3
|
|
2.19
|
Bankruptcy;
Criminal Proceedings
|
3
|
|
2.20
|
Disclosure
|
3
|
|
ARTICLE
III REPRESENTATIONS AND WARRANTIES OF COMPANY AND COMPANY
STOCKHOLDERS
|
3 | |
|
3.1
|
Organization
and Good Standing
|
3
|
|
3.2
|
Capitalization
|
3
|
|
3.3
|
Authority;
No Violation
|
3
|
|
3.4
|
Interim
Operations of the Company
|
3
|
|
3.5
|
Financial
Statements
|
3
|
|
3.6
|
Absence
of Certain Changes or Events
|
3
|
|
3.7
|
Legal
Proceedings
|
3
|
|
3.8
|
Taxes
and Tax Returns
|
3
|
|
3.9
|
Employee
Benefit Plans
|
3
|
46
|
3.10
|
Compliance
with Applicable Law
|
3
|
|
3.11
|
Certain
Contracts
|
3
|
|
3.12
|
Properties
and Insurance
|
3
|
|
3.13
|
Minute
Books
|
3
|
|
3.14
|
Environmental
Matters
|
3
|
|
3.15
|
Agreements
with Governmental Entity
|
3
|
|
3.16
|
Labor
Disputes
|
3
|
|
3.17
|
Loans,
Etc
|
3
|
|
3.18
|
Absence
of Liabilities
|
3
|
|
3.19
|
Intellectual
Property
|
3
|
|
3.20
|
No
Brokers
|
3
|
|
3.21
|
Bankruptcy
|
3
|
|
3.22
|
Criminal
Proceedings
|
3
|
|
3.23
|
Consents
and Approvals
|
3
|
|
3.24
|
State
Takeover Statutes
|
3
|
|
3.25
|
Disclosure
|
3
|
|
ARTICLE
IV COVENANTS OF THE PARTIES
|
3 | |
|
4.1
|
Conduct
of Business
|
3
|
|
4.2
|
Negative
Covenants
|
3
|
|
4.3
|
No
Solicitation
|
3
|
|
4.4
|
Current
Information
|
3
|
|
4.5
|
Access
to Properties and Records; Confidentiality
|
3
|
|
4.6
|
Regulatory
Matters
|
3
|
|
4.7
|
Further
Assurances
|
3
|
|
4.8
|
Public
Announcements
|
3
|
|
4.9
|
Failure
to Fulfill Conditions
|
3
|
|
4.10
|
Disclosure
Supplements
|
3
|
|
ARTICLE
V CONDITIONS PRECEDENT TO OBLIGATIONS OF ANCHOR
|
3 | |
|
5.1
|
Accuracy
of Representations and Warranties
|
3
|
|
5.2
|
Government
Consents
|
3
|
|
5.3
|
Documents
|
3
|
|
5.4
|
Private
Placement
|
3
|
|
5.5
|
Corporate
Approvals
|
3
|
|
5.6
|
Employment
Agreements and Director Compensation Agreement
|
3
|
|
5.7
|
No
Proceedings
|
3
|
|
5.8
|
No
Injunctions or Restraints
|
3
|
|
5.9
|
No
Stop Order
|
3
|
|
5.10
|
Placement
Agent Agreement
|
3
|
|
5.11
|
Directors
and Officers
|
3
|
|
5.12
|
Filings
and Notifications Mandated By Plan of Reorganization
|
3
|
|
ARTICLE
VI CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
|
3 | |
47
|
6.1
|
Government
Consents
|
3
|
|
6.2
|
Documents
|
3
|
|
6.3
|
No
Proceedings
|
3
|
|
6.4
|
No
Injunctions or Restraints
|
3
|
|
6.5
|
Lock-Up
Agreements
|
3
|
|
ARTICLE
VII INDEMNIFICATION AND REMEDIES
|
3 | |
|
7.1
|
Indemnification
by the Company Stockholders
|
3
|
|
7.2
|
Indemnification
Claims
|
3
|
|
7.3
|
Survival
of Representations and Warranties
|
3
|
|
7.4
|
Limitations
|
3
|
|
7.5
|
Certain
Definitions
|
3
|
|
ARTICLE
VIII TERMINATION OF AGREEMENT
|
3 | |
|
8.1
|
Termination
|
3
|
|
8.2
|
No
Liability for Proper Termination
|
3
|
|
ARTICLE
IX MISCELLANEOUS
|
3 | |
|
9.1
|
Nonsurvival
of Representations, Warranties and Agreements of Anchor
|
3
|
|
9.2
|
Governing
Law
|
3
|
|
9.3
|
Submission
to Jurisdiction
|
3
|
|
9.4
|
Waiver
of Jury Trial
|
3
|
|
9.5
|
Assignment;
Binding Upon Successors and Assigns
|
3
|
|
9.6
|
Severability
|
3
|
|
9.7
|
Expenses
|
3
|
|
9.8
|
Attorneys’
Fees
|
3
|
|
9.9
|
Notices
|
3
|
|
9.10
|
Entire
Agreement
|
3
|
|
9.11
|
Amendment
|
3
|
|
9.12
|
Extension;
Waiver
|
3
|
|
9.13
|
Counterparts
and Facsimile Signature
|
3
|
|
9.14
|
Descriptive
Headings
|
3
|
|
9.15
|
No
Third Party Beneficiaries
|
3
|
|
9.16
|
Specific
Performance
|
3
|
|
9.17
|
Joint
Preparation
|
3
|
|
9.18
|
Drafting
Ambiguities
|
3
|
|
EXHIBIT
A-1
|
-
Anchor Members
|
|
|
EXHIBIT
A-2
|
-
Company Stockholders
|
|
|
EXHIBIT
B-1
|
-
Xxxxx Xxxxx Employment Agreement
|
|
|
EXHIBIT
B-2
|
-
Xxxx Xxxxxxxxx Employment Agreement
|
|
|
EXHIBIT
B-3
|
-
Xxxxxx Xxxxx Director Compensation Agreement
|
|
|
EXHIBIT
C
|
-
Form of Lock-up Agreement
|
48
