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Exhibit 2.1
AGREEMENT AND PLAN OF SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF SHARE EXCHANGE (the "Agreement") is made
this 12th day of September, 1997, by and between THE HEATERMEALS COMPANY, a
Colorado corporation ("HeaterMeals" or the "Company"), and UNITED XXXXXXX
CORPORATION, a Colorado corporation ("USC").
WHEREAS, USC desires to acquire all of the issued and outstanding
common shares of HeaterMeals pursuant to the terms of this Agreement (the
"Exchange"); and
WHEREAS, the Board of Directors of HeaterMeals has determined that it
would be in the best interests of HeaterMeals and its shareholders for the
Exchange to be accomplished.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein, HEATERMEALS AND USC AGREE AS FOLLOWS:
ARTICLE 1
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THE EXCHANGE
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1.1 SHAREHOLDER APPROVAL. This Agreement shall be submitted to the
shareholders of HeaterMeals for their approval and adoption at a meeting
thereof, duly held in accordance with the Colorado Business Corporation Act on
or before the date provided for in Section 4.3 hereof. Upon such approval and
adoption, the officers of HeaterMeals and USC, subject to the satisfaction of
the terms and conditions contained in and subject to the further provisions of
this Agreement, shall take all steps necessary in order to make the Exchange
effective as provided for in this Agreement.
1.2 CONDITIONS. The Exchange shall become effective when all of the
following actions shall have been taken:
(a) This Agreement shall be approved and adopted on
behalf of HeaterMeals and USC in accordance with the Colorado
Business Corporation Act;
(b) The conditions and obligations of HeaterMeals and
USC hereunder shall have been satisfied or waived as provided
herein; and
(c) In accordance with the provisions of the Colorado
Business Corporation Act, a Certificate of Share Exchange
containing the statements required by, and executed in
accordance with, said law, shall be filed with the office of
the Secretary of State of Colorado (the time and date of such
filing are herein referred to as the "Effective Time of the
Exchange").
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1.3 FILING OF CERTIFICATE OF SHARE EXCHANGE. The Exchange shall be
effected by filing a Certificate of Share Exchange with respect to the Exchange
with the Secretary of State of the State of Colorado. Such filing shall be made
at such time as is determined by the Board of Directors of USC, after the
approval of this Agreement by the shareholders of HeaterMeals at the meeting of
such shareholders referred to in Sections 1.1 and 4.3 hereof. If the Effective
Time of the Exchange does not occur on or before October 15, 1997 (or such later
date as is agreed to in writing by the Company and USC, but no later than
November 15, 1997), this Agreement shall terminate and be of no further effect.
1.4 EXCHANGE OF SHARES FOR EXCHANGE PRICE. At the Effective Time of the
Exchange, each outstanding HeaterMeals common share, par value $.01 (in the
singular, a "Share," and, in the plural, "Shares"), shall be, by operation of
law, deemed exchanged with USC for its pro rata share of $2,000,000 cash (the
"Exchange Price"); provided that any HeaterMeals Shares as to which appraisal
rights have been duly perfected in accordance with the laws of the State of
Colorado shall be deemed exchanged for the rights of appraisal and payment as
are provided by such law. In computing a Share's pro rata share of the Exchange
Price, the Exchange Price shall be divided by the number of Shares outstanding
at the Effective Time of the Exchange, regardless of whether or not appraisal
rights are later perfected for any such Shares.
1.5 ISSUANCE OF NEW STOCK CERTIFICATE. Immediately after the Effective
Time of the Exchange, HeaterMeals shall issue a stock certificate to USC for the
number of Shares so exchanged at the Effective Time of the Exchange.
1.6 OLD HEATERMEALS STOCK CERTIFICATES. After the Effective Time of the
Exchange, each outstanding certificate which immediately prior to the Effective
Time of the Exchange represented HeaterMeals Shares shall thereupon represent
the right to receive the pro rata portion of the Exchange Price to which the
Shares represented by such certificate are entitled. As soon as possible after
the Effective time of the Exchange, USC shall send a notice and transmittal form
to each record owner of Shares immediately prior to the Effective Time of the
Exchange advising each record owner of the date and applicable terms of the
Exchange, the pro rata share of the Exchange Price to which each Share is
entitled as a result of the Exchange, the procedure for surrendering to the
Exchange Agent (as defined in Section 5.4 hereof) or to USC their HeaterMeals
stock certificates in order to receive the pro rata share of the Exchange Price
to which the Shares represented thereby are entitled, and any and all
information required by Article 113 of the Colorado Business Corporation Act
relating to appraisal rights. Until so surrendered, each such outstanding
HeaterMeals stock certificate shall be deemed for all corporate purposes to
evidence the ownership either (i) of the right to receive the pro rata share of
the Exchange Price to which the shares represented by such HeaterMeals stock
certificate became entitled at the Effective Time or (ii) the rights of
appraisal and payment as are provided by Article 113 of the Colorado Business
Corporation Act. HeaterMeals may deem and treat the registered holder of any
such outstanding HeaterMeals' stock certificates as the absolute owner thereof,
unless and until surrendered in accordance with the instructions issued pursuant
to this Section 1.6.
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ARTICLE 2
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REPRESENTATIONS AND WARRANTIES OF HEATERMEALS
---------------------------------------------
Except as set forth in the Disclosure Schedule, dated the date of this
Agreement and delivered by HeaterMeals to USC prior to the execution of this
Agreement, HeaterMeals hereby represents and warrants to USC that:
2.1 ORGANIZATION. HeaterMeals is a corporation duly organized, validly
existing, and in good standing under the laws of Colorado, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good standing
in each of the jurisdictions where its business requires qualification.
2.2 CAPITALIZATION. The authorized capital stock of HeaterMeals
consists of 10,000,000 common shares, par value $.01 per share, and 2,000,000
preferred shares, par value $.10 per share, of which 1,943,420 common shares and
no preferred shares are currently issued and outstanding. All of the issued and
outstanding shares of HeaterMeals are duly authorized, validly issued, fully
paid, and nonassessable. Other than disclosed on the Disclosure Schedule, there
are no outstanding subscriptions, options, rights, warrants, debentures,
instruments, convertible securities, or other agreements or commitments
obligating HeaterMeals to issue or transfer from treasury any additional shares
of its capital stock of any class.
2.3 SUBSIDIARIES. HeaterMeals owns the subsidiaries listed on the
Disclosure Schedule and no others.
2.4 DIRECTORS AND OFFICERS. The Disclosure Schedule contains the names
and titles of all directors and officers of HeaterMeals as of the date of this
Agreement.
2.5 FINANCIAL STATEMENTS. HeaterMeals has delivered to USC its audited
consolidated balance sheets and related statements of income as of December 31,
1996 and December 31, 1995, and its unaudited consolidated balance sheets and
related statements of income as of July 31, 1997 (the "Financial Statements").
The Financial Statements are complete and correct in all material respects and
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated. The Financial
Statements accurately set out and describe the financial condition of the
Company as of the dates and for the periods to which they relate.
2.6 ABSENCE OF CHANGES. Except as set forth in the Disclosure Schedule,
since July 31, 1997, to the best of HeaterMeals' knowledge, HeaterMeals has
conducted its business only in the ordinary course and has not experienced or
suffered any material adverse change in the condition (financial or otherwise),
results of operations, properties, business or prospects or waived or
surrendered any claim or right of material value.
2.7 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth in the
Disclosure Schedule, neither HeaterMeals nor any of its properties or assets are
subject to any material liabilities or obligations of any nature, whether
absolute, accrued, contingent or otherwise and whether due or
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to become due, that are not reflected in the financial statements presented to
USC or have otherwise been disclosed to USC or are in public records.
2.8 TAX RETURNS. Within the times and in the manner prescribed by law,
HeaterMeals has filed all federal, state and local tax returns required by law,
or has filed extensions which have not yet expired, and has paid all taxes,
assessments and penalties due and payable.
2.9 INTELLECTUAL PROPERTY. The Disclosure Schedule sets forth a
complete and accurate list of all of HeaterMeals' (i) registered trademarks and
service marks, and trademark and service xxxx applications, including county of
filing, filing number, date of issue and expiration date used in the business of
HeaterMeals; (ii) all registered copyrights; and (iii) patents and patent
rights. Except as set forth in the Disclosure Schedule, to HeaterMeals'
knowledge, no third party has asserted, or threatened to assert against
HeaterMeals or any of its officers or directors any conflicting right to any
such intellectual property and HeaterMeals has no knowledge of facts that
HeaterMeals believes could reasonably be expected to give rise to such a claim.
2.10 COMPLIANCE WITH LAWS. To the best of HeaterMeals' knowledge,
HeaterMeals has complied with, and is not in violation of, applicable federal,
state or local statutes, laws, regulations or ordinances affecting its
properties or the operation of its business, except for matters which would not
have a material affect on HeaterMeals or its properties.
2.11 LITIGATION. HeaterMeals is not a party to any litigation,
arbitration or other dispute or proceeding, or is any governmental investigation
pending or, to its best knowledge, threatened against HeaterMeals which would
affect HeaterMeals or its business, assets or financial condition, except for
matters which would not have a material affect on HeaterMeals or its properties.
HeaterMeals is not in default with respect to any order, writ, injunction or
decree of any federal, state, local or foreign court, department, agency or
instrumentality applicable to it. HeaterMeals is not engaged in any lawsuit to
recover any material amount of monies due to it.
2.12 AUTHORITY. Subject to receipt of the approval of HeaterMeals
shareholders, HeaterMeals has full corporate power and authority to enter into
this Agreement. The Board of Directors of HeaterMeals has approved the Agreement
and the transactions contemplated thereby; and, upon receipt of the requisite
approval thereof by the shareholders of HeaterMeals as contemplated by Section
5.2 hereof, (i) all corporate action by HeaterMeals for the execution, delivery
and performance of this Agreement by HeaterMeals will have been duly taken and
(ii) this Agreement will be a valid and binding agreement of HeaterMeals,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by general principles of equity, bankruptcy,
insolvency, moratorium and similar laws relating to creditor's rights generally.
2.13 ABILITY TO CARRY OUT OBLIGATIONS. Except as set forth in the
Disclosure Schedule, neither the execution and delivery of this Agreement, the
performance by HeaterMeals of its obligations under this Agreement, nor the
consummation of the transactions contemplated under this Agreement will, to the
best of HeaterMeals' knowledge: (a) violate any provision of HeaterMeals'
articles of incorporation or bylaws; (b) violate, or be in conflict with, or
constitute a default under, or cause or permit the termination or the
acceleration of the maturity of, any debt, contract, agreement or obligation of
HeaterMeals, or require the payment of any prepayment or other
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penalties; (c) require notice to, or the consent of, any party to any agreement,
commitment, lease or license; (d) result in the creation or imposition of any
security interest, lien, or other encumbrance upon any material property or
assets of HeaterMeals; or (e) violate any statute or law or any judgment,
decree, order, regulation or rule of any court or governmental authority.
2.14 FULL DISCLOSURE. HeaterMeals' representations and warranties made
herein, and in any schedule, exhibit or certificate furnished or to be furnished
in connection with this Agreement, are true and materially complete.
2.15 GOOD TITLE. HeaterMeals has good and marketable title to its
assets, tangible and intangible, free of material liens or encumbrances other
than as disclosed on the Disclosure Schedule or in public records.
2.16 MATERIAL CONTRACTS AND OBLIGATIONS. Set forth on the Disclosure
Schedule is a list of all agreements, contracts, indebtedness, known liabilities
and other known obligations to which HeaterMeals is a party or by which it is
bound that are material to the conduct and operations of its business and
properties, which provide for payments to or by the Company in excess of
$50,000, or which involve transactions or proposed transactions between the
Company and its officers and directors. Copies of such agreements and contracts
and documentation evidencing such liabilities and other obligations have been or
will be made available for inspection by USC and its counsel. All of such
agreements and contracts are valid, binding and in full force and effect in all
material respects, assuming due execution by the other parties to such
agreements and contracts.
2.17 GOVERNMENTAL/REGULATORY CONSENTS AND APPROVALS. Except for the
execution and filing of a Certificate of Share Exchange with the Colorado
Secretary of State, no consent, approval or authorization of, or declaration,
filing or registration with, any governmental or regulatory authority is
required to be made or obtained by HeaterMeals in connection with (a) the
execution and delivery; (b) the performance of obligations; or (c) the
consummations of the transactions contemplated by and under this Agreement.
ARTICLE 3
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REPRESENTATIONS AND WARRANTIES OF USC
-------------------------------------
USC hereby represents and warrants to HeaterMeals that:
3.1 ORGANIZATION. USC is a corporation duly organized, validly
existing, and in good standing under the laws of Colorado, having all necessary
corporate powers to own properties and to carry on business.
3.2. AUTHORITY. USC has full corporate power and authority to enter
into this Agreement. The Board of Directors of USC has taken all action required
to authorize the execution and delivery of this Agreement by or on its behalf
and no other proceedings are necessary to authorize the execution and deliver
this Agreement. This Agreement, when executed and delivered by USC, will be a
valid and binding agreement of USC, enforceable against it in accordance with
its terms, except
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as such enforceability may be limited by general principles of equity,
bankruptcy, insolvency, moratorium and similar laws relating to creditors'
material value.
3.3. ABILITY TO CARRY OUT OBLIGATIONS. Neither the execution and
delivery of this Agreement, the performance by USC of its obligations under this
Agreement, nor the consummation of the transactions contemplated under this
Agreement will, to the best of USC's knowledge: (a) violate any provision of
USC's articles of incorporation or bylaws; (b) violate, or be in conflict with
or constitute a default under, or cause or permit the termination or the
acceleration of the maturity of, any debt, contract, agreement or obligation of
USC, or require the payment of any prepayment or other penalties; (c) require
notice to, or the consent of, any party to any agreement or commitment, lease or
license; (d) result in the creation or imposition of any security interest, lien
or other encumbrance upon any property or assets of USC; or (e) violate any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority.
3.4. FULL DISCLOSURE. USC's representations and warranties made herein,
or in any exhibit, certificate or memorandum furnished or to be furnished by
USC, or on its behalf, are true and materially complete.
3.5. CONSENTS AND APPROVALS. Except for the execution and filing of a
Certificate of Share Exchange with the Colorado Secretary of State, no consent,
approval or authorization of, or declaration, filing or registration with, any
governmental or regulatory authority is required to be made or obtained by USC
in connection with: (a) the execution and delivery of its obligations; (b) the
performance; or (c) the consummation by USC of the transactions contemplated by
and under this Agreement.
ARTICLE 4
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COVENANTS
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4.1. INVESTIGATIVE RIGHTS. From the date of this Agreement until the
Effective Time of the Exchange, each party shall provide to the other party, and
such other party's counsel, accountants, auditors, and other authorized
representatives, full access during normal business hours and upon reasonable
advance written notice to all of each party's properties, books, contracts,
commitments, and records for the purpose of examining the same. Each party shall
furnish the other party with all information concerning each party's affairs as
the other party may reasonably request. If the transaction contemplated hereby
is not completed, all documents received by each party and/or its attorneys and
accountants, auditors or other authorized representatives shall be returned to
the other party who provided such documents. Each of the parties hereto, its
directors, employees, agents and representatives shall not disclose any of the
information described above unless such information is already disclosed to the
public, and will not use, and will not knowingly permit others to use, any such
information in a manner detrimental to the other party, in any such case without
the prior written consent of the party to which the confidential information
pertains. Each party shall take such steps as are necessary to prevent
disclosure of, or use of, such information to or by unauthorized third parties.
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4.2. CONDUCT OF BUSINESS. Prior to the Effective Time of the Exchange,
HeaterMeals and USC shall each conduct its business only in the normal course,
and shall not sell, pledge, assign or distribute any assets, except in the
regular course of business; provided, however, that each party may perform such
actions and execute and deliver such documents as are intended to facilitate the
consummation of the transactions contemplated by this Agreement.
4.3 SHAREHOLDERS' MEETING. HeaterMeals agrees to call a meeting of its
shareholders to be held on or before October 1, 1997, or such other date as
shall be mutually agreed upon in writing by the parties hereto for the purpose
of submitting to its shareholders for their approval of this Agreement and the
transactions contemplated hereby.
4.4 USC'S NEGOTIATIONS WITH LENDER. USC shall have the right to
negotiate directly with Bank One, NA to obtain Bank One, NA's waiver which is a
condition precedent under Sections 5.3 and 6.3 hereof. HeaterMeals shall
authorize Bank One, NA, to negotiate directly with USC concerning said waiver.
ARTICLE 5
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CONDITIONS PRECEDENT TO HEATERMEALS' PERFORMANCE.
-------------------------------------------------
The obligations of HeaterMeals hereunder shall be subject to the
satisfaction, at or before the Effective Time of the Exchange, of all the
conditions set forth in this Article 5. HeaterMeals may waive any or all of
these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by HeaterMeals of
any other condition of or any of HeaterMeals' other rights or remedies, at law
or in equity, if USC shall be in default of any of its representations,
warranties, or covenants under this Agreement.
5.1. ACCURACY OF REPRESENTATIONS. Except as otherwise permitted by this
Agreement, all representations and warranties by USC in this Agreement or in any
written statement that shall be delivered to HeaterMeals by USC under this
Agreement shall be true and accurate on and as of the Effective Time of the
Exchange as though made at that time.
5.2 SHAREHOLDER APPROVAL. This Agreement and the transactions
contemplated thereby shall have been approved by the shareholders of HeaterMeals
as required by law and any applicable provisions of HeaterMeals' Certificate of
Incorporation or bylaws.
5.3. LENDER APPROVAL AND FORBEARANCE. This Agreement shall have been
reviewed by Bank One, NA; and Bank One, NA shall have agreed to waive any breach
under its agreements and loan documents with HeaterMeals caused by the
consummation of the Exchange and its rights to accelerate payment on any of its
loans to HeaterMeals occasioned by said Exchange.
5.4. ESCROW OF EXCHANGE PRICE. USC shall have placed $2,000,000 in cash
with Wood & Xxxxxxx, LLP (the "Exchange Agent") under an Escrow and Exchange
Agreement mutually satisfactory to the parties hereto for the payment of the
proper amount of the Exchange Price to each shareholder of HeaterMeals who
surrenders his or her HeaterMeals stock certificate to the Exchange Agent with
duly endorsed stock powers to USC with signature guarantees by December 31,
1997.
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5.5 PERFORMANCE. USC shall have performed, satisfied, and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the Effective Time of the
Exchange.
5.6. ABSENCE OF LITIGATION. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or its consummation, shall have been instituted
or threatened against HeaterMeals or USC on or before the Effective Time of the
Exchange.
5.7 OFFICER'S CERTIFICATE. USC shall have delivered to HeaterMeals a
certificate, dated the day of the Effective Time of the Exchange, and signed by
the Chief Executive Officer of USC, certifying that each of the conditions
specified in Sections 5.1 and 5.3 through 5.6 hereof has been fulfilled.
ARTICLE 6
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CONDITIONS PRECEDENT TO USC'S PERFORMANCE
-----------------------------------------
USC's obligations hereunder shall be subject to the satisfaction, at or
before the Effective Time of the Exchange, of all the conditions set forth in
this Article 6. USC may waive any or all of these conditions, in whole or in
part, without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by USC of any other condition of or any of
USC's rights or remedies, at law or in equity, if HeaterMeals shall be in
default of any of its representations, warranties, or covenants under this
Agreement.
6.1. ACCURACY OF REPRESENTATIONS/RIGHT TO TERMINATE. Except as
otherwise permitted by this Agreement, all representations and warranties by
HeaterMeals in this Agreement or in any written statement that shall be
delivered by HeaterMeals to USC under this Agreement shall be true and accurate
on and as of the Effective Time of the Exchange as though made at that time. The
parties agree that, in USC's sole discretion, USC may terminate this Agreement
at any time prior to the Effective Time of the Exchange if USC determines for
any reason it is not in its best interest to consummate the transaction
contemplated hereby, subject to HeaterMeals' rights to reimbursement of expenses
under Section 7.9 hereof.
6.2 SHAREHOLDER APPROVAL. This Agreement and the transactions
contemplated hereby shall have been approved by the holders of two-thirds of the
outstanding Shares and as required by law and any applicable provisions of
HeaterMeals' Certificate of Incorporation or bylaws.
6.3 LENDER APPROVAL AND FORBEARANCE. This Agreement shall have been
reviewed by Bank One, NA; and Bank One, NA shall have agreed to waive any breach
under its agreements and loan documents with HeaterMeals caused by the
consummation of the Exchange and its rights to accelerate payment on any of its
loans to HeaterMeals occasioned by said Exchange.
6.4 OPTIONS AND WARRANTS. Immediately prior to the Effective Time of
the Exchange, there shall be no outstanding options or warrants to acquire
shares of HeaterMeals' capital stock or to acquire securities convertible into
shares of HeaterMeals' capital stock which have not been
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surrendered to HeaterMeals for cancellation; provided, however, that such
surrenders may be conditioned upon the Exchange being effected by November 16,
1997.
6.5 PERFORMANCE. HeaterMeals shall have performed, satisfied, and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it, on or before the Effective
Time of the Exchange.
6.6 ABSENCE OF LITIGATION. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or its consummation, shall have been instituted
or threatened against HeaterMeals or USC on or before the Effective Time of the
Exchange.
6.7 OFFICER'S CERTIFICATE. HeaterMeals shall have delivered to USC a
certificate, dated the day of the Effective Time of the Exchange, and signed by
a Vice President of HeaterMeals certifying that each of the conditions specified
in Sections 6.1 through 6.7 hereof have been fulfilled.
ARTICLE 7
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MISCELLANEOUS
-------------
7.1. CAPTIONS AND HEADINGS. The Article and paragraph sections
throughout this Agreement are for convenience and reference only, and shall in
no way define, limit, or add to the meaning of any provision of this Agreement.
7.2. NO ORAL CHANGE. This Agreement and any provision hereof may not be
waived, changed, modified, or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
7.3. NON-WAIVER. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
7.4. ENTIRE AGREEMENT. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
7.5. CHOICE OF LAW. This Agreement and its application shall be
governed by the laws of the State of Ohio, except to the extent that Ohio's
conflict of laws provisions would apply the laws of another jurisdiction.
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7.6. NOTICES. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party upon whom
notice is being given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
The HeaterMeals Company: with a copy to:
------------------------ ---------------
The HeaterMeals Company Xxxxx X. Xxxxxxxx, Esq.
000 Xxxxxxxxx Xxxxxxxxx Xxxx & Xxxxxxx
Xxxxxxxxxx, Xxxx 00000 0000 Xxxxxxxxxx Xxxxxxxx Xxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
XXX: with a copy to
---- --------------
United Xxxxxxx Corporation Xxxxxxx X. Xxxxxxx, Esq.
Grand Xxxxxxx Building Drew & Xxxx Co., LPA
000 Xxxx Xxxx Xxxxx Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxx 000 Xxxxxxxxxx, Xxxx 00000
Xxxxxxxxxx, Xxxx 00000
7.7 BINDING EFFECT. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
7.8 MUTUAL COOPERATION. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents, including statutory merger documents required by governing
jurisdictions, and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
7.9. EXPENSES. Except for the $30,000.00 which USC has paid to Wood &
Xxxxxxx, LLP, attorneys for HeaterMeals, as a retainer (the "Retainer") for the
payment of HeaterMeals' legal, consulting, and audit fees and related expenses
incurred in connection with the transactions contemplated by this Agreement
(which fees and expenses, individually and in the aggregate, are hereinafter
referred to as "Costs"), HeaterMeals and USC will each pay its own legal,
accounting and any other out of pocket expenses reasonably incurred in
connection with the transactions contemplated by this Agreement including, but
not limited to, those incurred in connection with (i) the negotiation of this
Agreement and the Letter of Intent dated July 22, 1997 between the parties, (ii)
the due diligence examination performed by each party on the other party and its
principals, and (iii) the calling and holding a meeting of HeaterMeals
shareholders. However, if USC decides not to consummate the Exchange for any
reason other than failure to obtain the necessary approval of this Agreement and
the transactions contemplated hereby by the shareholders of HeaterMeals, then
USC agrees to pay the HeaterMeals Costs after the Retainer has been exhausted up
to $30,000 over the Retainer.
7.10 EXHIBITS. As of the execution hereof, the parties hereto have
provided each other with the Schedules and Exhibits provided for hereinabove,
including any items referenced therein
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or required to be attached thereto. Any material changes to the Schedules or
Exhibits shall be immediately disclosed to the other party.
AGREED TO AND ACCEPTED as of the date first above written.
THE HEATERMEALS COMPANY UNITED XXXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ X.X. Xxxxx
--------------------------- ------------------------------
Xxxxx X. Xxxxxxxx X.X. Xxxxx
Senior Vice President Chief Executive Officer
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