EXHIBIT 99.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
XX XXXXXXXXX GROUP,
SLIDE VIEW MERGER CORP.,
AND
SLIDE VIEW CORP.
JANUARY 20, 2004
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT is dated as of January 20, 2004, by and among XX
Xxxxxxxxx Group, a Nevada corporation ("PARENT"), Slide View Merger Corp., an
Oklahoma corporation and wholly-owned subsidiary of Parent ("MERGER
SUBSIDIARY"), and Slide View Corp., an Oklahoma corporation (the "COMPANY").
WHEREAS, the Company is in the business of developing peripheral
computer hardware technologies (the "BUSINESS"); and
WHEREAS, the Boards of Directors of Parent, Merger Subsidiary, and the
Company have approved the merger of Merger Subsidiary with and into the Company
(the "MERGER") upon the terms and subject to the conditions set forth herein;
and
WHEREAS, for federal income tax purposes, it is intended that the
Merger will qualify as a reorganization within the meaning of Section
368(a)(1)(A) and (a)(2)(E) of the Internal Revenue Code of 1986, as amended (the
"Code"); and
WHEREAS, the parties hereto desire to make certain representations,
warranties, and agreements in connection with the Merger and also to prescribe
various conditions to the Merger;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual representations, warranties, covenants, and agreements contained herein,
the parties hereto agree as follows:
ARTICLE 1
THE MERGER; CONVERSION OF SHARES
1.1 THE MERGER. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in Section 1.2 hereof), Merger Subsidiary will
be merged with and into the Company in accordance with the provisions of the
Oklahoma General Corporation Act (the "OGCA"), whereupon the separate corporate
existence of Merger Subsidiary will cease, and the Company will continue as the
surviving corporation (the "SURVIVING CORPORATION"). From and after the
Effective Time, the Surviving Corporation will possess all the rights,
privileges, powers, and franchises and be subject to all the restrictions,
disabilities, and duties of the Company and Merger Subsidiary, all as more fully
described in the OGCA.
1.2 EFFECTIVE TIME. As soon as practicable after each of the conditions
set forth in Article 5 and Article 6 has been satisfied or waived, the Company
and Merger Subsidiary will file, or cause to be filed, with the Secretary of
State of the State of Oklahoma, Articles of Merger for the Merger, which
Articles will be in the form required by and executed in accordance with the
applicable provisions of the OGCA. The Merger will become effective at the time
such filing is made or, if agreed to by Parent and the Company, such later time
or date set forth in the Articles of Merger (the "EFFECTIVE TIME").
1.3 CLOSING. Unless this Agreement has been terminated and the
transactions contemplated herein have been abandoned pursuant to Article 7
hereof the closing of the Merger (the "CLOSING"), will take place at a time and
on a date (the "CLOSING DATE") to be specified by the parties, which will be no
later than January 31, 2004 (the "TERMINATION DATE"); provided, however, that
all of the conditions provided for in Articles 5 and 6 hereof have been
satisfied or waived by such date. The Closing will be held at the offices of
Xxxxxxx Xxxxx & Xxxxx LLP, 0000 Xxxxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000, or
such other place as the parties may agree, at which time and place the documents
and instruments necessary or appropriate to effect the transactions contemplated
herein will be exchanged by the parties. Except as otherwise provided herein,
all actions taken at the Closing will be deemed to be taken simultaneously.
1.4 CONVERSION OF SHARES. Subject to the terms and conditions of this
Agreement, at the Effective Time, by virtue of the Merger and without any action
on the part of any holder of any share of capital stock of the Company or Merger
Subsidiary:
(a) Each share of common stock of the Company, par value $.001
per share ("COMPANY COMMON STOCK"), issued and outstanding immediately
prior to the Effective Time (except for shares referred to in Section
1.4(b) hereof) will be converted into the right to receive 0.4521262
shares of common stock of the Parent, par value $.001 per share
("PARENT COMMON STOCK"). The amount of Parent Common Stock into which
each such share of Company Common Stock is converted is referred to
herein as the "MERGER CONSIDERATION".
(b) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time that is then owned beneficially
or of record by Parent, Merger Subsidiary, or any direct or indirect
subsidiary of Parent or the Company will be canceled without payment of
any consideration therefor and without any conversion thereof.
(c) Each share of any other class of capital stock of the
Company (other than Company Common Stock) will be canceled without
payment of any consideration therefor and without any conversion
thereof.
(d) Each share of common stock of Merger Subsidiary, par value
$.01 per share ("MERGER SUBSIDIARY COMMON STOCK"), issued and
outstanding immediately prior to the Effective Time will be converted
into one share of the common stock of the Surviving Corporation, par
value $.01 per share ("SURVIVING CORPORATION COMMON STOCK").
1.5 RETAINED CONSIDERATION. Notwithstanding the Merger Consideration
that would otherwise be payable to the shareholders of the Company upon
consummation of the Merger, the Parent will be entitled to retain 704,000 of the
total number of shares of Parent Common Stock comprising the Merger
Consideration (the "RETAINED CONSIDERATION") subject to the achievement of the
milestones set forth below (each, a "MILESTONE") on or before the respective
dates set forth below (each, a "MILESTONE DATE"):
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NUMBER OF
SHARES MILESTONE MILESTONE DATE
176,000 Principal Shareholders (defined in Section 8.2) and The Offering Completion shall occur
Parent cause the completion ("OFFERING COMPLETION") no later than nine (9) months from
of a private placement offering of equity securities Principal Shareholders and Parent's
of the Parent (the "OFFERING") in which the gross execution of the Offering
proceeds to the Parent from the sale of such Acknowledgement ("OFFERING
securities equals or exceeds $1,000,000 (the MILESTONE"). Principal Shareholders
"Funding"). The terms of the Offering shall be will be allowed to extend the
subject to the commercially reasonable satisfaction Offering Milestone 45 days if they
of Principal Shareholders and by Parent and shall be have written commitments by
evidenced by a written acknowledgement signed by investors to invest at least
Parent and by Principal Shareholders (the "OFFERING $750,000 towards the Offering.
ACKNOWLEDGEMENT").
264,000 Principal Shareholders shall use good faith The Device Completion shall occur no
commercially reasonable efforts to cause the later than ten (10) weeks after
completion ("DEVICE COMPLETION") of a prototype Parent has (a) caused the Offering
peripheral device for laptop computers featuring a Completion, (b) executed the Device
lateral slide-out flat panel LCD display screen (a Contract; and (c) Parent causing
"DEVICE") to the reasonable satisfaction of the payment of the 50% down payment for
Parent. Parent covenants and agrees to pay or cause the Device Manufacture Contract
to be paid the cost of manufacturing the Device, and "DEVICE COMPLETION MILESTONE").
shall use good faith reasonable efforts to enter Parent acknowledges and agrees that
into a written agreement ("DEVICE MANUFACTURE if Parent delays in causing the
Contract") for the manufacture of the Device with a payment of any part of the Device
reputable manufacturer ("DEVICE MANUFACTURER") of Manufacture Price subsequent to the
devices such as the Device. The terms of the Device Offering Completion, the length of
Manufacture Contract shall be subject to Principal such delay will be added to achieve
Shareholders' commercially reasonable consent, and the Device Completion Milestone.
whose terms shall require that the contract price
("DEVICE MANUFACTURE PRICE") be paid 50% at the time
of signing the Device Manufacture Contract, and the
remaining 50% of the Device Price shall be due and
payable within 30 days after delivery of the
completed Device in a condition reasonably
satisfactory to Parent. Parent covenants and agrees
that it will pay or cause to be paid 50% of at the
Device Manufacture Price at the time of signing the
Device Manufacture Contract and the remaining 50% of
the Device Manufacture Price within 30 days after
delivery of the completed Device in a condition
reasonably satisfactory to Parent.
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264,000 Completion of tooling and molding ("TOOL & MOLDING The Tool and Molding Completion
COMPLETION") for the production of commercially shall occur eleven (11) months
salable Devices to the reasonable satisfaction of the after the following events have
Parent. Parent covenants and agrees to pay or cause occurred ("TOOL & MOLDING
to be paid the cost of tool and molding the for the Milestone"): (a) DEVICE COMPLETION
production of commercially salable Devices, and shall MILESTONE has been satisfied, (b)
use good faith reasonable efforts to enter into a the execution of the Tool & Molding
written agreement ("TOOL & MOLDING CONTRACT") for the Contract; and (c) Parent causing
tool and molding of the Device with a reputable tool payment of the 50% down payment for
and molding maker (TOOL & MOLDING MANUFACTURER") of the Tool & Molding Contract. Parent
devices such as the Device. The Tool & Molding acknowledges and agrees that if
Contract shall be subject to Principal Shareholders' Parent delays in causing payment of
commercially reasonable consent, and whose terms any of the periodic invoices for
shall require that the contract price ("TOOL & the Tool & Molding Contract Price
MOLDING CONTRACT PRICE") be paid 50% of the at the subsequent to the Offering
time of execution of the Tool & Molding Contract, and Completion, the length of such delay
periodic invoices for the balance of the Tool & will be added to achieve the Tool &
Molding Contract Price shall be due and payable 'net Molding Milestone.
15 days' after receipt, and the final payment due and
payable 'net 30 days' after Tool & Molding
Manufacturer's completion of the Tool & Molding
Contract in a condition reasonably satisfactory to
Parent. Parent covenants and agrees that it will pay
or cause to be paid 50% of at the Tool & Molding
Contract Price at the time of signing the Tool &
Molding Contract and to pay periodic invoices for the
balance of the Tool & Molding Contract Price within
15 days after receipt, and to pay the final payment
within 30 days' after Tool & Molding Manufacturer's
completion of the Tool & Molding Contract in a
condition reasonably satisfactory to Parent.
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Each Milestone set forth above is independent of each other Milestone.
Nothing in this Agreement shall be construed as an undertaking by any party to
take any actions in furtherance of any Milestone, nor a guarantee that any
Milestone will be completed. Failure to achieve a Milestone on or before the
applicable Milestone Date will result in the forfeiture and cancellation of the
portion of the Retained Consideration applicable to such Milestone, but such
failure will not affect the balance of the Merger Consideration. The release of
the applicable portion of the Retained Consideration upon achievement of a
Milestone is not dependent upon the achievement of any other Milestone. The
shares of Parent Common Stock comprising the Retained Consideration will be
distributed to the shareholders of the Company in accordance with Section
1.6(b).
1.6 EXCHANGE OF COMPANY COMMON STOCK.
(a) At the Closing, the Company will arrange for each holder
of record (a "SHAREHOLDER") of a certificate or certificates that
immediately prior to the Effective Time represented outstanding shares
of Company Common Stock ("COMPANY CERTIFICATES") to deliver to the
Parent such holder's Company Certificates, together with appropriate
stock powers signed by such holders, in exchange for the number of
whole shares of Parent Common Stock into which such shares have been
converted as provided in Section 1.4(a) other than the portion
attributable to the Retained Consideration, and the Company
Certificate(s) so surrendered will be canceled.
(b) Upon achievement of each Milestone, each holder of record
of Company Certificates surrendered pursuant to Section 1.6(a) will be
entitled to receive, in addition to the Merger Consideration received
pursuant to Section 1.6(a), the proportion of the Retained
Consideration to which they otherwise would have been entitled pursuant
to Section 1.6(a) as if such Milestone has been achieved as of the
Closing Date.
(c) All shares of Parent Common Stock issued upon the
surrender for exchange of Company Common Stock in accordance with the
terms hereof (including any cash paid for fractional shares pursuant to
Section 1.6(e) hereof) will be deemed to have been issued in full
satisfaction of all rights pertaining to such shares of Company Common
Stock.
(d) As of the Effective Time, the holders of Company
Certificates representing shares of Company Common Stock will cease to
have any rights as shareholders of the Company, except such rights, if
any, as they may have pursuant to the OGCA. Except as provided above,
until such Company Certificates are surrendered for exchange, each such
Company Certificate will, after the Effective Time, represent for all
purposes only the right to receive the number of whole shares of Parent
Common Stock into which the shares of Company Common Stock have been
converted pursuant to the Merger as provided in Section 1.4(a) hereof
(subject to the Parent's right of set-off against the Retained
Consideration) and the right to receive the cash value of any fraction
of a share of Parent Common Stock as provided in Section 1.6(e) hereof.
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(e) No fractional shares of Parent Common Stock will be issued
upon the surrender for exchange of Company Certificates, no dividend or
other distribution of Parent will relate to any fractional share, and
such fractional share interests will not entitle the owner thereof to
vote or to any rights of a shareholder of Parent. All fractional shares
of Parent Common Stock to which a holder of Company Common Stock
immediately prior to the Effective Time would otherwise be entitled, at
the Effective Time, will be aggregated if and to the extent multiple
Company Certificates of such holder are submitted together to Parent.
If a fractional share results from such aggregation, then such
fractional share will be rounded up to the nearest whole share and each
holder of shares of Company Common Stock who otherwise would be
entitled to receive such fractional share of Parent Common Stock will
receive one whole share in lieu of such fractional share.
1.7 EXCHANGE OF MERGER SUBSIDIARY COMMON STOCK. From and after the
Effective Time, each outstanding certificate previously representing shares of
Merger Subsidiary Common Stock will be deemed for all purposes to evidence
ownership of and to represent the number of shares of Surviving Corporation
Common Stock into which such shares of Merger Subsidiary Common Stock have been
converted. Promptly after the Effective Time, the Surviving Corporation will
issue to Parent a stock certificate or certificates representing such shares of
Surviving Corporation Common Stock in exchange for the certificate or
certificates that formerly represented shares of Merger Subsidiary Common Stock,
which will be canceled.
1.8 CAPITALIZATION CHANGES. If, between the date of this Agreement and
the Effective Time, the outstanding shares of Parent Common Stock are changed
into a different number of shares or a different class by reason of any
reclassification, stock-split, combination, exchange of shares, stock dividend
or similar change in the capitalization of Parent, all per-share price amounts
and calculations set forth in this Agreement will be appropriately adjusted.
1.9 ARTICLES OF INCORPORATION OF THE SURVIVING CORPORATION. The
Articles of Incorporation of the Company, as in effect immediately prior to the
Effective Time, will be the Articles of Incorporation of the Surviving
Corporation until thereafter amended in accordance with applicable law.
1.10 BYLAWS OF THE SURVIVING CORPORATION. The Bylaws of the Company, as
in effect immediately prior to the Effective Time, will be the Bylaws of the
Surviving Corporation until thereafter amended in accordance with applicable
law.
1.11 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. The directors
and officers of the Company immediately prior to the Effective Time will be the
directors and officers, respectively, of the Surviving Corporation until their
respective successors are duly elected and qualified.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent as follows:
2.1 DISCLOSURE SCHEDULE. The disclosure schedule attached hereto as
EXHIBIT 2.1 (the "DISCLOSURE SCHEDULE") is divided into sections that correspond
to the sections of this Article 2. The Disclosure Schedule comprises a list of
all exceptions to the truth and accuracy of, and of all disclosures or
descriptions required by, the representations and warranties set forth in the
remaining sections of this Article 2.
2.2 CORPORATE ORGANIZATION, ETC. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Oklahoma with the requisite corporate power and authority to carry on its
business as it is now being conducted and to own, operate and lease its
properties and assets, is duly qualified or licensed to do business as a foreign
corporation in good standing in every other jurisdiction in which the character
or location of the properties and assets owned, leased or operated by it or the
conduct of its business requires such qualification or licensing, except in such
jurisdictions in which the failure to be so qualified or licensed and in good
standing would not, individually or in the aggregate, have a Material Adverse
Effect (as defined below) on the Company. The Disclosure Schedule contains a
list of all jurisdictions in which the Company is qualified or licensed to do
business and includes complete and correct copies of the Company's articles of
incorporation and bylaws. The Company does not own or control any capital stock
of any corporation or any interest in any partnership, joint venture or other
entity.
2.3 CAPITALIZATION. The authorized capital stock of the Company is set
forth in the Disclosure Schedule. The number of shares of the capital stock of
the Company outstanding, as of the date of this Agreement and as set forth in
the Disclosure Schedule, represent all of the issued and outstanding capital
stock of the Company. All issued and outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and nonassessable and
are without, and were not issued in violation of, preemptive rights. There are
no shares of capital stock or other equity securities of the Company outstanding
or any securities convertible into or exchangeable for such shares, securities
or rights. Other than as set forth on the Disclosure Schedule and pursuant to
this Agreement, there is no subscription, option, warrant, call, right,
contract, agreement, commitment, understanding or arrangement to which the
Company is a party, or by which it is bound, with respect to the issuance, sale,
delivery or transfer of the capital stock of the Company, including any right of
conversion or exchange under any security or other instrument. The Company has
no subsidiaries.
2.4 AUTHORIZATION, ETC. The Company has all requisite corporate power
and authority to enter into, execute, deliver, and perform its obligations under
this Agreement. This Agreement has been duly and validly executed and delivered
by the Company and is the valid and binding legal obligation of the Company
enforceable against the Company in accordance with its terms, subject to
bankruptcy, moratorium, principles of equity and other limitations limiting the
rights of creditors generally.
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2.5 NON-CONTRAVENTION. Except as set forth in the Disclosure Schedule,
neither the execution, delivery and performance of this Agreement, and each
other agreement to be entered into in connection with this Agreement, nor the
consummation of the transactions contemplated herein will:
(a) violate, contravene or be in conflict with any provision
of the articles of incorporation or bylaws of the Company;
(b) be in conflict with, or constitute a default, however
defined (or an event which, with the giving of due notice or lapse of
time, or both, would constitute such a default), under, or cause or
permit the acceleration of the maturity of, or give rise to any right
of termination, cancellation, imposition of fees or penalties under any
debt, note, bond, lease, mortgage, indenture, license, obligation,
contract, commitment, franchise, permit, instrument or other agreement
or obligation to which the Company is a party or by which the Company
or any of the Company's properties or assets is or may be bound;
(c) result in the creation or imposition of any pledge, lien,
security interest, restriction, option, claim or charge of any kind
whatsoever ("ENCUMBRANCES") upon any property or assets of the Company
under any debt, obligation, contract, agreement or commitment to which
the Company is a party or by which the Company or any of the Company's
assets or properties are bound; or
(d) materially violate any statute, treaty, law, judgment,
writ, injunction, decision, decree, order, regulation, ordinance or
other similar authoritative matters (referred to herein individually as
a "LAW" and collectively as "LAWS") of any foreign, federal, state or
local governmental or quasi-governmental, administrative, regulatory or
judicial court, department, commission, agency, board, bureau,
instrumentality or other authority (referred to herein individually as
an "AUTHORITY" and collectively as "AUTHORITIES").
2.6 CONSENTS AND APPROVALS. Except as set forth in the Disclosure
Schedule, with respect to the Company, no consent, approval, order or
authorization of or from, or registration, notification, declaration or filing
with ("CONSENT") any individual or entity, including without limitation any
Authority, is required in connection with the execution, delivery or performance
of this Agreement by the Company or the consummation by the Company of the
transactions contemplated herein.
2.7 FINANCIAL STATEMENTS. The Disclosure Schedule contains a copy of
the balance sheet of the Company as of November 30, 2003 (the "BALANCE SHEET")
and a statement of income for the Company for the eleven (11) months ended
November 30, 2003 (the "INCOME STATEMENT") (collectively, the "FINANCIAL
STATEMENTS"). Except as disclosed therein or in the Disclosure Schedule, the
aforesaid Financial Statements: (i) are in accordance with the books and records
of the Company and have been prepared in conformity with good accounting
practices (except as stated therein or in the notes thereto); and (ii) are true,
complete and accurate in all material respects and fairly present the financial
position of the Company as of the date thereof, and the income or loss for the
period then ended, except that the Balance Sheet and the Income Statement do not
contain all required footnotes and are subject to normal year-end adjustments
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2.8 ABSENCE OF UNDISCLOSED LIABILITIES. The Company does not have any
material liabilities, obligations or claims of any kind whatsoever, whether
secured or unsecured, accrued or unaccrued, fixed or contingent, matured or
unmatured, known or unknown, direct or indirect, contingent or otherwise and
whether due or to become due (referred to herein individually as a "LIABILITY"
and collectively as "LIABILITIES"), other than: (a) Liabilities that are fully
reflected or reserved for in the Balance Sheet; (b) Liabilities that are set
forth on the Disclosure Schedule; (c) Liabilities incurred by the Company in the
ordinary course of business after the date of the Balance Sheet and consistent
with past practice and in an amount not to exceed $5,000 individually or in the
aggregate (none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty, tort,
infringement or violation of Law) unless such amounts are disclosed on the
Disclosure Schedule; or (d) Liabilities for express executory obligations to be
performed after the Closing under the contracts described in Section 2.15 of the
Disclosure Schedule (other than any express executory obligations that might
arise due to any default or other failure of performance by the Company prior to
the Closing Date).
2.9 ABSENCE OF CERTAIN CHANGES. Except as set forth in the Disclosure
Schedule, since the date of the Balance Sheet, the Company has owned and
operated its assets, properties and business in the ordinary course of business
and consistent with past practice. Without limiting the generality of the
foregoing, subject to the aforesaid exceptions:
(a) the Company has not experienced any change that has had or
could reasonably be expected to have a Material Adverse Effect on the
Company;
(b) the Company has not suffered (i) any loss, damage,
destruction or other property or casualty (whether or not covered by
insurance) or (ii) any loss of officers, employees, dealers,
distributors, independent contractors, customers or suppliers, which
had or may reasonably be expected to result in a Material Adverse
Effect on the Company; and
(c) no event has taken place which if consummated following
the date hereof would constitute a violation of Section 4.2 hereof.
2.10 ASSETS. Except as set forth in the Disclosure Schedule, the
Company has good and marketable title to all of its assets and properties,
whether or not reflected in the Balance Sheet or acquired after the date thereof
(except for properties sold or otherwise disposed of since the date thereof in
the ordinary course of business and consistent with past practices), that relate
to or are necessary for the Company to conduct its business and operations as
currently conducted (collectively, the "ASSETS"), free and clear of any
mortgage, pledge, lien, security interest, conditional or installment sales
agreement, encumbrance, claim, easement, right of way, tenancy, covenant,
encroachment, restriction or charge of any kind or nature (whether or not of
record) (a "LIEN"), other than (i) liens securing specific Liabilities shown on
the Balance Sheet with respect to which no breach, violation or default exists;
(ii) mechanics', carriers', workers' or other like liens arising in the ordinary
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course of business; (iii) minor imperfections of title that do not individually
or in the aggregate, impair the continued use and operation of the Assets to
which they relate in the operation of the Company as currently conducted; and
(iv) liens for current taxes not yet due and payable or being contested in good
faith by appropriate proceedings ("PERMITTED LIENS"). The Company has full right
and power to, and at the Closing will, deliver to Parent good and marketable
title to all of the Assets, free and clear of any Lien, other than Permitted
Liens.
2.11 RECEIVABLES AND PAYABLES.
(a) Except as set forth on the Disclosure Schedule, all
accounts receivable of the Company represent sales in the ordinary
course of business and, to the Company's knowledge, are current and
collectible net of any reserves shown on the Balance Sheet and none of
such receivables is subject to any Lien other than a Permitted Lien.
(b) Except as set forth on the Disclosure Schedule, all
payables by the Company arose in bona fide transactions in the ordinary
course of business and no such payable is delinquent by more than sixty
(60) days beyond the due date in its payment.
2.12 INTELLECTUAL PROPERTY RIGHTS. The Company owns or has the
unrestricted right to use, and the Disclosure Schedule contains a detailed
listing of, all patents, patent applications, patent rights, registered and
unregistered trademarks, trademark applications, tradenames, service marks,
service xxxx applications, copyrights, internet domain names, computer programs
and other computer software, inventions, know-how, trade secrets, technology,
proprietary processes, trade dress, software and formulae (collectively,
"INTELLECTUAL PROPERTY RIGHTS") used in, or necessary for, the operation of its
business as currently conducted or proposed to be conducted. Except as set forth
on the Disclosure Schedule, the use of all Intellectual Property Rights
necessary or required for the conduct of the business of the Company as
presently conducted and as proposed to be conducted does not infringe or violate
the Intellectual Property Rights of any person or entity. Except as described on
the Disclosure Schedule, to the Company's knowledge: (a) the Company does not
own or use any Intellectual Property Rights pursuant to any written license
agreement; (b) the Company has not granted any person or entity any rights,
pursuant to a written license agreement or otherwise, to use the Intellectual
Property Rights; and (c) the Company owns, has unrestricted right to use and has
sole and exclusive possession of and has good and valid title to, all of the
Intellectual Property Rights, free and clear of all Liens and Encumbrances. All
license agreements relating to Intellectual Property Rights are binding and
there is not, under any of such licenses, any existing default or event of
default (or event which with notice or lapse of time, or both, would constitute
a default, or would constitute a basis for a claim on non-performance) on the
part of the Company or, to the knowledge of the Company, any other party
thereto.
2.13 LITIGATION. Except as set forth in the Disclosure Schedule, there
is no legal, administrative, arbitration, or other proceeding, suit, claim or
action of any nature or investigation, review or audit of any kind, or any
judgment, decree, decision, injunction, writ or order pending, noticed,
scheduled, or, to the knowledge of the Company, threatened or contemplated by or
against or involving the Company, its assets, properties or business or its
directors, officers, agents or employees (but only in their capacity as such),
whether at law or in equity, before or by any person or entity or Authority, or
which questions or challenges the validity of this Agreement or any action taken
or to be taken by the parties hereto pursuant to this Agreement or in connection
with the transactions contemplated herein.
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2.14 BANK ACCOUNTS; POWERS OF ATTORNEY. The Disclosure Schedule sets
forth: (a) the names of all financial institutions, investment banking and
brokerage houses, and other similar institutions at which the Company maintains
accounts, deposits, safe deposit boxes of any nature, and the account numbers
and names of all persons authorized to draw thereon or make withdrawals
therefrom; (b) the terms and conditions thereof and any limitations or
restrictions as to use, withdrawal or otherwise; and (c) the names of all
persons or entities holding general or special powers of attorney from the
Company and a summary of the terms thereof.
2.15 CONTRACTS AND COMMITMENTS; NO DEFAULT.
(a) Except as set forth in the Disclosure Schedule, the
Company is not a party to, nor are any of the Assets bound by, any
written or oral:
(i) employment, non-competition, consulting or
severance agreement, collective bargaining agreement, or
pension, profit-sharing, incentive compensation, deferred
compensation, stock purchase, stock option, stock appreciation
right, group insurance, severance pay or retirement plan or
agreement;
(ii) indenture, mortgage, note, installment
obligation, agreement or other instrument relating to the
borrowing of money by the Company;
(iii) contract, agreement, lease (real or personal
property) or arrangement that (A) is not terminable on less
than 30 days' notice without penalty, (B) is not over one year
in length of obligation of the Company, or (C) involves an
obligation of more than $5,000 over its term;
(iv) contract, agreement, commitment or license
relating to Intellectual Property Rights or contract,
agreement or commitment of any other type, whether or not
fully performed, not otherwise disclosed pursuant to this
Section 2.15;
(v) obligation or requirement to provide funds to or
make any investment (in the form of a loan, capital
contribution or otherwise) in any person or entity;
(vi) outstanding sales or purchase contracts,
commitments or proposals that will result in any material loss
upon completion or performance thereof after allowance for
direct distribution expenses, or bound by any outstanding
contracts, bids, sales or service proposals quoting prices
that are not reasonably expected to result in a normal profit;
or
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(vii) contract, commitment, agreement or arrangement
with any "disqualified individual" (as defined in Section
280G(c) of the Code) which contains any severance or
termination pay liabilities which would result in a
disallowance of the deduction for any "excess parachute
payment" (as defined in Section 280G(b)(1) of the Code) under
Section 280G of the Code.
(b) True and complete copies (or summaries, in the case of
oral items) of all agreements disclosed pursuant to this Section 2.15
(the "COMPANY CONTRACTS") have been provided to Parent for review.
Except as set forth in the Disclosure Schedule, all of the Company
Contracts items are valid and enforceable by and against the Company in
accordance with their terms, and are in full force and effect. Except
as otherwise specified in the Disclosure Schedule, none of the Company
Contracts contains a provision requiring the consent of any party with
respect to the consummation of the transactions contemplated by this
Agreement. The Company is not in breach, violation or default, however
defined, in the performance of any of its obligations under any of the
Company Contracts, and no facts and circumstances exist which, whether
with the giving of due notice, lapse of time, or both, would constitute
such breach, violation or default thereunder or thereof, and, to the
knowledge of the Company, no other parties thereto are in a breach,
violation or default, however defined, thereunder or thereof, and no
facts or circumstances exist which, whether with the giving of due
notice, lapse of time, or both, would constitute such a breach,
violation or default thereunder or thereof. None of the Company
Contracts is subject to renegotiation with any Authority.
2.16 COMPLIANCE WITH LAW; PERMITS AND OTHER OPERATING RIGHTS. Except as
set forth in the Disclosure Schedule, the Assets, properties, business and
operations of the Company are and have been in compliance in all respects with
all Laws applicable to the Company's assets, properties, business and
operations, except where the failure to comply would not have a Material Adverse
Effect. Except as set forth in the Disclosure Schedule, the Company does not
require the Consent of any Authority to permit it to operate in the manner in
which its business is presently being operated. The Company possesses all
material permits, licenses and other authorizations from all Authorities
necessary to permit it to operate its business in the manner in which it
presently is conducted and the consummation of the transactions contemplated by
this Agreement will not prevent the Company from being able to continue to use
such permits and operating rights. Except as set forth in the Disclosure
Schedule, the Company is not restricted by agreement from carrying on its
business or any part thereof anywhere in the world or from competing in any line
of business with any person or entity. The Company has not received notice of
any violation of any such applicable Law, and is not in default with respect to
any order, writ, judgment, award, injunction or decree of any Authority.
2.17 BROKERS. Neither the Company nor, to the knowledge of the Company,
any of the its directors, officers or employees, has employed any broker,
finder, investment banker or financial advisor or incurred any liability for any
brokerage fee or commission, finder's fee or financial advisory fee, in
connection with the transactions contemplated hereby, nor is there any basis
known to the Company for any such fee or commission to be claimed by any person
or entity.
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2.18 ISSUANCE OF PARENT COMMON STOCK. To the Company's knowledge, as of
the date of this Agreement and as of the Effective Time, no facts or
circumstances exist or will exist that could cause the issuance of Parent Common
Stock pursuant to the Merger to fail to meet the exemption from the registration
requirements of the Securities Act set forth in Rule 506 of Regulation D under
of the Securities Act.
2.19 BOOKS AND RECORDS. The books of account, minute books, stock
record books, and other material records of the Company, all of which have been
made available to Parent, are complete and correct in all material respects and
have been maintained in accordance with reasonable business practices. The
minute books of the Company contain accurate and complete records of all formal
meetings held of, and corporate action taken by, the shareholders, the Board of
Directors, and committees of the Board of Directors of the Company. At the
Closing, all of those books and records will be in the possession of the
Company.
2.20 BUSINESS GENERALLY; ACCURACY OF INFORMATION. No representation or
warranty made by the Company in this Agreement, the Disclosure Schedule, or in
any document, agreement or certificate furnished or to be furnished to Parent at
the Closing by or on behalf of the Company in connection with any of the
transactions contemplated by this Agreement contains or will contain any untrue
statement of material fact or omit or will omit to state any material fact
necessary in order to make the statements herein or therein not misleading in
light of the circumstances in which they are made, and all of the foregoing
completely and correctly present the information required or purported to be set
forth herein or therein. To the knowledge of the Company, there is no material
fact as of the date hereof that has not been disclosed in writing to Parent
related to the Company, its operations, properties, financial condition or
prospects, taken as a whole, that has, or could reasonably be expected to have,
a Material Adverse Effect on the Company. The representations and warranties
contained in this Article 2 or elsewhere in this Agreement or any document
delivered pursuant hereto will not be affected or deemed waived by reason of the
fact that Parent or its representatives knew or should have known that any such
representation or warranty is or might be inaccurate in any respect.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PARENT
AND THE MERGER SUBSIDIARY
Parent and the Merger Subsidiary represent and warrant to the Company
as follows:
3.1 CORPORATE ORGANIZATION, STANDING AND POWER. The Parent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada. Merger Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the State of Oklahoma.
Each of Parent and Merger Subsidiary has all corporate power and authority to
own its properties and to carry on its business as now being conducted and is
duly qualified to do business and is in good standing in each jurisdiction in
which the failure to be so qualified would have a Material Adverse Effect on
Parent and Merger Subsidiary.
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3.2 AUTHORIZATION. Each of Parent and the Merger Subsidiary has all the
requisite corporate power and authority to enter into this Agreement and to
carry out the transactions contemplated herein. The Board of Directors of Parent
and the Merger Subsidiary, and Parent as the sole shareholder of the Merger
Subsidiary have taken all action required by law, their respective articles of
incorporation and bylaws or otherwise to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein. This Agreement is the valid and binding legal obligation of
Parent and the Merger Subsidiary enforceable against each of them in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws that affect creditors'
rights generally.
3.3 NON-CONTRAVENTION. Neither the execution, delivery and performance
of this Agreement nor the consummation of the transactions contemplated herein
will: (i) violate any provision of the articles of incorporation or bylaws of
Parent or the Merger Subsidiary; or (ii) except for such violations, conflicts,
defaults, accelerations, terminations, cancellations, impositions of fees or
penalties, mortgages, pledges, liens, security interests, encumbrances,
restrictions and charges which would not, individually or in the aggregate, have
a Material Adverse Effect on Parent, (A) violate, be in conflict with, or
constitute a default, however defined (or an event which, with the giving of due
notice or lapse of time, or both, would constitute such a default), under, or
cause or permit the acceleration of the maturity of, or give rise to, any right
of termination, cancellation, imposition of fees or penalties under, any debt,
note, bond, lease, mortgage, indenture, license, obligation, contract,
commitment, franchise, permit, instrument or other agreement or obligation to
which Parent or the Merger Subsidiary is a party or by which Parent or the
Merger Subsidiary or any of their respective properties or assets is or may be
bound (unless with respect to which defaults or other rights, requisite waivers
or consents will have been obtained at or prior to the Closing) or (B) result in
the creation or imposition of any mortgage, pledge, lien, security interest,
encumbrance, restriction, adverse claim or charge of any kind, upon any property
or assets of Parent or the Merger Subsidiary under any debt, obligation,
contract, agreement or commitment to which Parent or the Merger Subsidiary is a
party or by which Parent or the Merger Subsidiary or any of their respective
assets or properties is or may be bound; or (iii) violate any Law of any
Authority.
3.4 CAPITALIZATION. The authorized capital stock of Parent consists of
200,000,000 shares of Parent Common Stock, of which there are 45,000,002 shares
of Parent Common Stock issued and outstanding as of the date of this Agreement.
The authorized capital stock of the Merger Subsidiary consists of 1,000 shares
of Merger Subsidiary Common Stock, all of which are issued and outstanding and
owned by Parent.
3.5 CONSENTS AND APPROVALS. No Consent is required by any person or
entity, including without limitation any Authority, in connection with the
execution, delivery and performance by Parent of this Agreement, or the
consummation of the transactions contemplated herein, other than any Consent
which, if not made or obtained, will not, individually or in the aggregate, have
a Material Adverse Effect on the business of Parent.
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3.6 VALID ISSUANCE. The Parent Common Stock to be used in connection
with the Merger will be duly authorized and, when issued, delivered and paid for
as provided in this Agreement, will be validly issued, fully paid and
non-assessable.
3.7 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Parent has delivered or made available to the Company
accurate and complete copies (excluding copies of exhibits) of each
report, registration statement and definitive proxy statement filed by
Parent with the SEC since January 1, 2003 (collectively, with all
information incorporated by reference therein or deemed to be
incorporated by reference therein, the "PARENT SEC DOCUMENTS"). All
statements, reports, schedules, forms and other documents required to
have been filed by Parent with the SEC have been so filed on a timely
basis. As of the time it was filed with the SEC (or, if amended or
superseded by a filing prior to the date of this Agreement, then on the
date of such filing): (i) each of the Parent SEC Documents complied in
all material respects with the applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act") or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(ii) none of the Parent SEC Documents contained any untrue statement of
a material fact or omitted 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) The consolidated financial statements contained in the
Parent SEC Documents: (i) complied as to form in all material respects
with the published rules and regulations of the SEC applicable thereto;
(ii) were prepared in accordance with GAAP applied on a consistent
basis throughout the periods covered (except as may be indicated in the
notes to such financial statements and, in the case of unaudited
statements, as permitted by Form 10-QSB of the SEC, and except that
unaudited financial statements may not contain footnotes and are
subject to normal and recurring year-end audit adjustments which will
not, individually or in the aggregate, be material in amount); and
(iii) fairly present, in all material respects, the consolidated
financial position of Parent and its consolidated subsidiaries as of
the respective dates thereof and the consolidated results of operations
of Parent and its consolidated subsidiaries for the periods covered
thereby. All adjustments considered necessary for a fair presentation
of the financial statements have been included.
3.8 ABSENCE OF CERTAIN CHANGES. Except as set forth in the Parent SEC
Documents, the Company has owned and operated its assets, properties and
business in the ordinary course of business and consistent with past practice.
Without limiting the generality of the foregoing, subject to the aforesaid
exceptions:
(a) the Parent has not experienced any change that has had or
could reasonably be expected to have a Material Adverse Effect on the
Parent;
(b) the Parent has not suffered (i) any loss, damage,
destruction or other property or casualty (whether or not covered by
insurance) or (ii) any loss of officers, employees, dealers,
distributors, independent contractors, customers or suppliers, which
had or may reasonably be expected to result in a Material Adverse
Effect on the Parent.
-15-
3.9 LITIGATION. Except as disclosed in the Parent SEC Documents, there
is no legal, administrative, arbitration, or other proceeding, suit, claim or
action of any nature or investigation, review or audit of any kind, or any
judgment, decree, decision, injunction, writ or order pending, noticed,
scheduled, or, to the knowledge of the Parent or the Merger Subsidiary,
threatened or contemplated by or against or involving the Parent, its assets,
properties or business or its directors, officers, agents or employees (but only
in their capacity as such), whether at law or in equity, before or by any person
or entity or Authority, or which questions or challenges the validity of this
Agreement or any action taken or to be taken by the parties hereto pursuant to
this Agreement or in connection with the transactions contemplated herein.
3.10 CONTRACTS AND COMMITMENTS; NO DEFAULT. The Parent is not a party
to, nor are any of its Assets bound by, any material contract (a "PARENT
CONTRACT") that is not disclosed in the Parent SEC Documents and that is or will
be required to be disclosed in the Parent SEC Documents pursuant to Item
601(b)(10) of Regulation S-K (or the equivalent provision of Regulation S-B).
Except as disclosed in the Parent SEC Documents, none of the Parent Contracts
contains a provision requiring the consent of any party with respect to the
consummation of the transactions contemplated by this Agreement. The Parent is
not in breach, violation or default, however defined, in the performance of any
of its obligations under any of the Parent Contracts, and no facts and
circumstances exist which, whether with the giving of due notice, lapse of time,
or both, would constitute such breach, violation or default thereunder or
thereof, and, to the knowledge of the Parent, no other parties thereto are in a
breach, violation or default, however defined, thereunder or thereof, and no
facts or circumstances exist which, whether with the giving of due notice, lapse
of time, or both, would constitute such a breach, violation or default
thereunder or thereof. None of the Parent Contracts is subject to renegotiation
with any Authority.
3.11 NO BROKER OR FINDER. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the Merger or any of the other transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Parent.
ARTICLE 4
COVENANTS OF THE PARTIES
4.1 CONDUCT OF BUSINESS OF THE COMPANY. Except as contemplated by this
Agreement, during the period from the date of this Agreement to the Closing
Date, the Company will conduct its business and operations according to its
ordinary and usual course of business consistent with past practices with the
intent of preserving substantially intact its business organizations and
preserving its current relationships with customers, employees, suppliers and
other persons with which it has significant business relations. Without limiting
the generality of the foregoing, and, except as otherwise expressly provided in
this Agreement or as otherwise disclosed on the Disclosure Schedule, prior to
the Closing Date, without the prior written consent of Parent, the Company will
not:
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(a) amend its articles of incorporation or bylaws;
(b) issue, reissue, sell, deliver or pledge or authorize or
propose the issuance, reissuance, sale, delivery or pledge of shares of
capital stock of any class, or securities convertible into capital
stock of any class, or any rights, warrants or options to acquire any
convertible securities or capital stock;
(c) adjust, split, combine, subdivide, reclassify or redeem,
purchase or otherwise acquire, or propose to redeem or purchase or
otherwise acquire, any shares of its capital stock, or any of its other
securities;
(d) 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, redeem or otherwise acquire
any shares of its capital stock or other securities, alter any term of
any of its outstanding securities;
(e) (i) except as required under any employment agreement,
increase in any manner the compensation of any of its directors,
officers or other employees; (ii) pay or agree to pay any pension,
retirement allowance or other employee benefit not required or
permitted by any existing plan, agreement or arrangement to any such
director, officer or employee, whether past or present; or (iii) except
in connection with any written arrangement approved by Parent, commit
itself to any additional pension, profit-sharing, bonus, incentive,
deferred compensation, stock purchase, stock option, stock appreciation
right, group insurance, severance pay, retirement or other employee
benefit plan, agreement or arrangement, or to any employment agreement
or consulting agreement (arising out of prior employment ) with or for
the benefit of any person, or, except to the extent required to comply
with applicable law, amend any of such plans or any of such agreements
in existence on the date of this Agreement;
(f) hire any additional personnel;
(g) incur, assume, suffer or become subject to, whether
directly or by way of guarantee or otherwise, any Liabilities which,
individually or in the aggregate, would have a Material Adverse Effect
on the Company;
(h) pay, discharge or satisfy' any Liabilities other than the
payment, discharge or satisfaction in the ordinary course of business
and consistent with past practice;
(i) sell, transfer, or otherwise dispose of any of its Assets
or license to other the use of any of its technology, other than in the
ordinary course of business and consistent with past practice;
(j) permit or allow any of its Assets to be subjected to any
Encumbrance, except for Permitted Liens;
-17-
(k) write down the value of any inventory or write off as
uncollectible any receivables, except for immaterial write-downs and
write-offs in the ordinary course of business and consistent with past
practice;
(l) cancel any debts or waive any claims or rights, in each
case, of substantial value;
(m) dispose of or permit to lapse any Intellectual Property
Rights, or dispose of or disclose (except as necessary in the conduct
of its business) to any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or, as
applicable, any other entity ("PERSON") other than representatives of
Parent, any Intellectual Property Rights not theretofore a matter of
public knowledge;
(n) make or enter into any commitment for capital expenditures
in excess of $10,000 in any one case;
(o) pay, lend or advance any amount to, or sell, transfer or
lease any properties or assets (real, personal or mixed, tangible or
intangible) to, or enter into any agreement or arrangement with, any of
its officers or directors or any affiliate or associate of any of its
officers or directors;
(p) terminate, enter into or amend in any material respect any
contract, agreement, lease, license or commitment identified in Section
2.15 of the Disclosure Schedule, or take any action or omit to take any
action which will cause a breach, violation or default (however
defined) under any such items, except in the ordinary course of
business and consistent with past practice;
(q) acquire any of the business or assets of any other person
or entity;
(r) permit any of its current insurance (or reinsurance)
policies to be cancelled or terminated or any of the coverage
thereunder to lapse, unless simultaneously with such termination,
cancellation or lapse, replacement policies providing coverage equal to
or greater than coverage remaining under those cancelled, terminated or
lapsed are in full force and effect;
(s) suffer any adverse change in its relationship with a
material customer, including the loss of any such customer or a
contract with such customer;
(t) enter into other material agreements, commitments or
contracts not in the ordinary course of business or in excess of
current requirements;
(u) settle or compromise any suit, claim or dispute or
threatened suit, claim or dispute;
(v) agree in writing or otherwise to take any of the foregoing
actions or any action which would make any representation or warranty
in this Agreement untrue or incorrect in any material respect.
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4.2 NO COMPANY SOLICITATION OF ALTERNATE TRANSACTION. The Company, the
Company's directors, officers and employees, independent contractors,
consultants, counsel, accountants, investment advisors and other representatives
and agents will not, directly or indirectly, solicit, initiate or entertain
offers from, or participate in any way in negotiations with, provide any
nonpublic information to, enter into any agreement with, or in any manner
encourage, discuss, accept or consider any proposal of, any third party relating
to the acquisition of the Company, its assets or business, in whole or in part,
whether through a tender offer (including a self tender offer), exchange offer,
merger, consolidation, sale of substantial assets or of a significant amount of
assets, sale of securities, acquisition of the Company's securities,
liquidation, dissolution or similar transactions involving the Company or any
division of the Company (such proposals, announcements or transactions being
called herein "ACQUISITION PROPOSALS"). The Company will promptly inform Parent
of any inquiry (including the terms thereof and the identity of the third party
making such inquiry) that it may receive in respect of an Acquisition Proposal
and furnish to Parent a copy of any such written inquiry.
4.3 FULL ACCESS TO PARENT. Throughout the period prior to Closing, the
Company will afford to Parent and its directors, officers, employees, counsel,
accountants, investment advisors and other authorized representatives and
agents, reasonable access to the facilities, properties, books and records of
the Company in order that Parent may have full opportunity to make such
investigations as it will desire to make of the affairs of the Company. The
Company will furnish such additional financial and operating data and other
information as Parent will, from time to time, reasonably request, including
without limitation access to the working papers of its independent certified
public accountants; PROVIDED, however, that any such investigation will not
affect or otherwise diminish or obviate in any respect any of the
representations and warranties of the Company herein.
4.4 CONFIDENTIALITY. Each of the parties hereto agrees that it will not
use, or permit the use of, any of the information relating to any other party
hereto furnished to it in connection with the transactions contemplated herein
("INFORMATION") in a manner or for a purpose detrimental to such other party or
otherwise than in connection with the transaction, and that they will not
disclose, divulge, provide or make accessible (collectively, "DISCLOSE"), or
permit the Disclosure of, any of the Information to any person or entity, other
than their respective directors, officers, employees, investment advisors,
accountants, counsel and other authorized representatives and agents, except as
may be required by judicial or administrative process or, in the opinion of such
party's counsel, by other requirements of Law; provided, however, that prior to
any Disclosure of any Information permitted hereunder, the disclosing party will
first obtain the recipients' undertaking to comply with the provisions of this
Section with respect to such information. The term "INFORMATION" as used herein
will not include any information relating to a party that the party disclosing
such information can show: (i) to have been in its possession prior to its
receipt from another party hereto; (ii) to be now or to later become generally
available to the public through no fault of the disclosing party; (iii) to have
been available to the public at the time of its receipt by the disclosing party;
(iv) to have been received separately by the disclosing party in an unrestricted
manner from a person entitled to disclose such information; or (v) to have been
developed independently by the disclosing party without regard to any
information received in connection with this transaction. Each party hereto also
agrees to promptly return to the party from whom it originally received such
information all original and duplicate copies of written materials containing
Information should the transactions contemplated herein not occur. A party
hereto will be deemed to have satisfied its obligations to hold the Information
confidential if it exercises the same care as it takes with respect to its own
similar information.
-19-
4.5 FILINGS; CONSENTS; REMOVAL OF OBJECTIONS. Subject to the terms and
conditions herein provided, the parties hereto will use their best efforts to
take or cause to be taken all actions and do or cause to be done all things
necessary, proper or advisable under applicable Laws to consummate and make
effective, as soon as reasonably practicable, the transactions contemplated
hereby, including without limitation obtaining all Consents of any person or
entity, whether private or governmental, required in connection with the
consummation of the transactions contemplated herein. In furtherance, and not in
limitation of the foregoing, it is the intent of the parties to consummate the
transactions contemplated herein at the earliest practicable time, and they
respectively agree to exert commercially reasonable efforts to that end,
including without limitation: (i) the removal or satisfaction, if possible, of
any objections to the validity or legality of the transactions contemplated
herein; and (ii) the satisfaction of the conditions to consummation of the
transactions contemplated hereby.
4.6 FURTHER ASSURANCES; COOPERATION; NOTIFICATION.
(a) Each party hereto will, before, at and after Closing,
execute and deliver such instruments and take such other actions as the
other party or parties, as the case may be, may reasonably require in
order to carry out the intent of this Agreement. Without limiting the
generality of the foregoing, at any time after the Closing, at the
reasonable request of Parent and without further consideration, the
Company will execute and deliver such instruments of sale, transfer,
conveyance, assignment and confirmation and take such action as Parent
may reasonably deem necessary or desirable in order to more effectively
consummate the transactions contemplated hereby.
(b) The Company will cooperate with Parent to promptly develop
plans for the management of the business after the Closing, including
without limitation plans relating productivity, marketing, operations
and improvements, and the Company will further cooperate with Parent to
provide for the implementation of such plans as soon as practicable
after the Closing. Subject to applicable Law, the Company will confer
on a regular and reasonable basis with one or more representatives of
Parent to report on operational matters and the general status of
ongoing operations.
(c) At all times from the date hereof until the Closing, each
party will promptly notify the other in writing of the occurrence of
any event which it reasonably believes will or may result in a failure
by such party to satisfy the conditions specified in this Article 4.
4.7 SUPPLEMENTS TO DISCLOSURE SCHEDULE. Prior to the Closing, the
Company will supplement or amend the Disclosure Schedule with respect to any
event or development which, if existing or occurring at or prior to the date of
this Agreement, would have been required to be set forth or described in the
Disclosure Schedule or which is necessary to correct any information in the
Disclosure Schedule or in any representation and warranty of the Company which
has been rendered inaccurate by reason of such event or development. For
purposes of determining the accuracy as of the date hereof of the
representations and warranties of the Company contained in Article 2 hereof in
order to determine the fulfillment of the conditions set forth herein, the
Disclosure Schedule will be deemed to exclude any information contained in any
supplement or amendment hereto delivered after the delivery of the Disclosure
Schedule.
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4.8 PUBLIC ANNOUNCEMENTS. None of the parties hereto will make any
public announcement with respect to the transactions contemplated herein without
the prior written consent of the other parties, which consent will not be
unreasonably withheld or delayed; PROVIDED, HOWEVER, that any of the parties
hereto may at any time make any announcements that are required by applicable
Law so long as the party so required to make an announcement promptly upon
learning of such requirement notifies the other parties of such requirement and
discusses with the other parties in good faith the exact proposed wording of any
such announcement. Within forty-eight (48) hours of the Closing, the Parent will
issue a press release announcing the Merger, subject to the reasonable approval
of the Principal Shareholders (as defined below).
4.9 SATISFACTION OF CONDITIONS PRECEDENT. Each party will use
commercially reasonable efforts to satisfy or cause to be satisfied all the
conditions precedent that are applicable to them, and to cause the transactions
contemplated by this Agreement to be consummated, and, without limiting the
generality of the foregoing, to obtain all material consents and authorizations
of third parties and to make filings with, and give all notices to, third
parties that may be necessary or reasonably required on its part in order to
effect the transactions contemplated hereby.
4.10 PAYMENT OF CONSULTING FEE. Parent agrees to pay, on behalf of the
Company, the consulting fees payable pursuant to Section 3(a) of that certain
Consulting Agreement to which the Company is a party, dated October 28, 2003, by
issuing up to a total of 360,000 shares of Parent Common Stock to the consultant
designated in writing by the Company. Such shares will be issued to the
designated consultant in the following amounts on the following dates: (i)
264,000 shares on the Closing Date, (ii) 24,000 shares on the first Milestone
Date, (iii) 36,000 shares on each of the second and third Milestone Dates.
ARTICLE 5
CONDITIONS TO THE OBLIGATIONS OF THE PARENT
AND MERGER SUBSIDIARY
Notwithstanding any other provision of this Agreement to the contrary,
the obligation of Parent and Merger Subsidiary to effect the transactions
contemplated herein will be subject to the satisfaction at or prior to the
Closing, or waiver by Parent, of each of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Company contained in this Agreement, including without
limitation in the Disclosure Schedule initially delivered to Parent as Exhibit
2.1 (and not including any changes or additions delivered to Parent pursuant to
Section 4.7), will be true, complete and accurate in all material respects as of
the date when made and at and as of the Closing Date as though such
representations and warranties were made at and as of such time, except for
changes specifically permitted or contemplated by this Agreement, and except
insofar as the representations and warranties relate expressly and solely to a
particular date or period, in which case they will be true and correct at the
Closing with respect to such date or period.
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5.2 PERFORMANCE. The Company will have performed and complied in all
material respects with all agreements, covenants, obligations and conditions
required by this Agreement to be performed or complied with by the Company on or
prior to the Closing.
5.3 REQUIRED APPROVALS AND CONSENTS.
(a) All action required by law and otherwise to be taken by
the shareholders of the Company to authorize the execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby will have been duly and validly taken.
(b) All Consents of or from all Authorities required hereunder
to consummate the transactions contemplated herein, will have been
delivered, made or obtained, and Parent will have received copies
thereof.
5.4 AGREEMENTS AND DOCUMENTS. Parent and Merger Subsidiary will have
received the following agreements and documents, each of which will be in full
force and effect:
(a) a certificate executed on behalf of the Company by its
Chief Executive Officer confirming that the conditions set forth in
Sections 5.1, 5.2, 5.3, 5.5, 5.6 and 5.7 have been duly satisfied;
(b) an investor representation letter and waiver of dissenters
or appraisal rights in the form of Exhibit 5.4(b) executed by each
holder of capital stock of the Company immediately prior to the
Effective Time; and
5.5 ADVERSE CHANGES. No material adverse change will have occurred in
the business, financial condition, prospects, assets or operations of the
Company since November 30, 2003.
5.6 NO PROCEEDING OR LITIGATION. No suit, action, investigation,
inquiry or other proceeding by any Authority or other person or entity will have
been instituted or threatened which delays or questions the validity or legality
of the transactions contemplated hereby or which, if successfully asserted,
would, in the reasonable judgment of Parent, individually or in the aggregate,
otherwise have a Material Adverse Effect on the Company's business, financial
condition, prospects, assets or operations or prevent or delay the consummation
of the transactions contemplated by this Agreement.
5.7 LEGISLATION. No Law will have been enacted which prohibits,
restricts or delays the consummation of the transactions contemplated hereby or
any of the conditions to the consummation of such transaction.
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5.8 APPROPRIATE DOCUMENTATION. The Parent will have received, in a form
and substance reasonably satisfactory to Parent, dated the Closing Date, all
certificates and other documents, instruments and writings to evidence the
fulfillment of the conditions set forth in this Article 5 as Parent may
reasonably request.
ARTICLE 6
CONDITIONS TO OBLIGATIONS OF THE COMPANY
AND THE SHAREHOLDERS
Notwithstanding anything in this Agreement to the contrary, the
obligation of the Company and the Shareholders to effect the transactions
contemplated herein will be subject to the satisfaction at or prior to the
Closing of each of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of Parent contained in this Agreement will be true, complete and
accurate in all material respects as of the date when made and at and as of the
Closing, as though such representations and warranties were made at and as of
such time, except for changes permitted or contemplated in this Agreement, and
except insofar as the representations and warranties relate expressly and solely
to a particular date or period, in which case they will be true and correct at
the Closing with respect to such date or period.
6.2 PERFORMANCE. The Parent will have performed and complied in all
material respects with all agreements, covenants, obligations and conditions
required by this Agreement to be performed or complied with by Parent at or
prior to the Closing.
6.3 CORPORATE APPROVALS. All action required to be taken by
shareholders and the Board of Directors of Parent to authorize the execution,
delivery and performance of this Agreement by Parent and the consummation of the
transactions contemplated hereby will have been duly and validly taken.
6.4 NO PROCEEDING OR LITIGATION. No suit, action, investigation,
inquiry or other proceeding by any Authority or other person or entity will have
been instituted or threatened which delays or questions the validity or legality
of the transactions contemplated hereby or which, if successfully asserted,
would, in the reasonable judgment of the Company, individually or in the
aggregate, otherwise have a Material Adverse Effect on Parent's business,
financial condition, prospects, assets or operations or prevent or delay the
consummation of the transactions contemplated by this Agreement.
ARTICLE 7
TERMINATION AND ABANDONMENT
7.1 TERMINATION BY MUTUAL CONSENT. This Agreement may be terminated at
any time prior to the Closing by the written consent of the Company and Parent.
7.2 TERMINATION BY EITHER THE COMPANY OR PARENT. This Agreement may be
terminated by either the Company or Parent if the Closing is not consummated by
the Termination Date (provided that the right to terminate this Agreement under
this Section 7.2 will not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of or resulted in the failure
of the Closing to occur on or before such date).
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7.3 TERMINATION BY PARENT. This Agreement may be terminated at any time
prior to the Closing by Parent if any of the conditions provided for in Article
5 have not been met or waived by Parent in writing prior to the Closing.
7.4 TERMINATION BY THE COMPANY. This Agreement may be terminated prior
to the Closing by action of the Company if any of the conditions provided for in
Article 6 have not been met or waived by the Company in writing prior to the
Closing.
7.5 PROCEDURE AND EFFECT OF TERMINATION. In the event of termination of
this Agreement and abandonment of the transactions contemplated hereby by the
Company or Parent pursuant to this Article 7, written notice thereof will be
given to all other parties and this Agreement will terminate (except to the
extent provided in Section 8.1 hereof) and the transactions contemplated hereby
will be abandoned, without further action by any of the parties hereto. If this
Agreement is terminated as provided herein:
(a) Each of the parties will, upon request, redeliver all
documents, work papers and other material of the other parties relating
to the transactions contemplated hereby, whether obtained before or
after the execution hereof, to the party furnishing the same;
(b) No party will have any liability for a breach of any
representation, warranty, agreement, covenant or the provision of this
Agreement, unless such breach was due to a willful or bad faith action
or omission of such party or any representative, agent, employee or
independent contractor thereof, and except for such representations,
warranties and covenants that will survive termination of this
Agreement pursuant to Section 8.1; and
(c) All filings, applications and other submissions made
pursuant to the terms of this Agreement will, to the extent
practicable, be withdrawn from the agency or other person to which
made.
ARTICLE 8
SURVIVAL AND INDEMNIFICATION
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS;
INVESTIGATION. The representations, warranties and covenants of each of the
parties hereto will survive the Closing for a period of one (1) year thereafter.
The right to indemnification or any other remedy based on representations,
warranties, covenants and obligations in this Agreement will not be affected by
any investigation conducted with respect to, or any knowledge acquired (or
capable of being acquired) at any time, whether before or after the execution
and delivery of this Agreement or the Closing Date, with respect to the accuracy
or inaccuracy of or compliance with, any such representation, warranty, covenant
or obligation. The waiver of any condition based on the accuracy of any
representation or warranty, or on the performance of or compliance with any
covenant or obligation, will not affect the right to indemnification or any
other remedy based on such representations, warranties, covenants, and
obligations.
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8.2 INDEMNIFICATION BY THE COMPANY AND THE SHAREHOLDERS. Xxxxxx
Xxxxxxxx and Xxxxx XxXxxxxx (the "PRINCIPAL SHAREHOLDERS") and the Company,
jointly and severally, agree to indemnify Parent and the Merger Subsidiary and
each of their respective shareholders, officers, directors, employees and agents
(collectively, the "PARENT INDEMNITEES") from and against any and all losses,
liabilities, obligations, demands, judgments, settlements, damages, or expenses
(including, but not limited to, interest, penalties, fees, and reasonable
professional fees and expenses) and against all claims in respect thereof
(including, without limitation, amounts paid 'in settlement and costs of
investigation) or diminution in value, whether or not involving a third-party
claim (referred to in this Article 8 collectively as "LOSSES" or individually as
a "LOSS") that any of the Parent Indemnitees may incur, directly or indirectly,
as a result from or in connection with: (i) any untrue representation or breach
of warranty by the Company in any part of this Agreement; or (ii) the breach of
or nonfulfillment of any covenant, agreement or undertaking of the Company in
this Agreement, notice of which is given to the Company on or prior to the
relevant expiration date. The Shareholders acknowledge that if a representation
or warranty that is qualified by materiality (including a Material Adverse
Effect) is breached after giving effect to such materiality qualification then
the Losses incurred by Parent resulting from such breach will include all Losses
resulting from a breach of such representation or warranty and not solely the
portion of such Losses in excess of such materiality qualifier. The Principal
Shareholders further acknowledge that upon the Closing, the Company will cease
to have any indemnification obligations pursuant to this Section 8.2 and that
the Principal Shareholders will bear such obligations and will have no right of
contribution from the Company with respect to their indemnification obligations.
8.3 INDEMNIFICATION BY PARENT. Parent agrees to indemnify, defend and
hold the Shareholders harmless from and against any and all Loss or Losses that
any of the Shareholders may incur, directly or indirectly, as a result from or
in connection with: (i) any untrue representation of, or breach of warranty by,
Parent or the Merger Subsidiary in any part of this Agreement; (ii) any
nonfulfillment of any covenant, agreement or undertaking of Parent or the Merger
Subsidiary in any part of this Agreement, notice of which is given to Parent on
or prior to the relevant expiration date.
8.4 LIMITATIONS ON INDEMNIFICATION. The aggregate indemnification
obligations of the Company and the Shareholders for indemnification under this
Article 8 will be limited to $200,000. The aggregate indemnification obligations
of the Parent and the Merger Subsidiary under this Article 8 will be limited to
an amount equal to $200,000. In addition, no party hereto will be entitled to
indemnification under this Article 8 unless such party has incurred Losses in
excess of $75,000 in the aggregate, in which case such Indemnified Party will be
entitled to indemnification for any and all Losses in accordance with this
Article 8.
8.5 CLAIMS FOR INDEMNIFICATION.
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(a) GENERAL. The parties intend that all indemnification
claims be made as promptly as practicable by the party seeking
indemnification (the "INDEMNIFIED PARTY"). Whenever any claim arises
for indemnification hereunder the Indemnified Party will promptly
notify the party from whom indemnification is sought (the "INDEMNIFYING
PARTY") of the claim and, when known, the facts constituting the basis
for such claim. The failure to so notify the Indemnifying Party will
not relieve the Indemnifying Party of any liability that it may have to
the Indemnified Party except to the extent the Indemnifying Party
demonstrates that the defense of such action is prejudiced thereby. The
Parent will have the right to set-off any indemnification claims as
against amounts it owes, now or in the future, to the Shareholders,
including without limitation the Retained Consideration, pursuant to
the terms of this Agreement or any ancillary agreement, if any, entered
into between the parent and any shareholder of the Company.
(b) CLAIMS BY THIRD PARTIES. With respect to claims made by
third parties, the Indemnifying Party will be entitled to assume
control of the defense of such action or claim with counsel reasonably
satisfactory to the Indemnified Party; provided, however, that:
(i) the Indemnified Party will be entitled to
participate in the defense of such claim and to employ counsel
at its own expense to assist in the handling of such claim;
(ii) no Indemnifying Party will consent to (A) the
entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by
each claimant or plaintiff to each Indemnified Party of a
release from all liability in respect of such claim or (B) if,
pursuant to or as a result of such consent or settlement,
injunctive or other equitable relief would be imposed against
the Indemnified Party or such judgment or settlement could
materially interfere with the business, operations or assets
of the Indemnified Party; and
(iii) if the Indemnifying Party does not assume
control of the defense of such claim in accordance with the
foregoing provisions within three days after receipt of notice
of the claim, the Indemnified Party will have the right to
defend such claim in such manner as it may deem appropriate at
the cost and expense of the Indemnifying Party, and the
Indemnifying Party will promptly reimburse the Indemnified
Party therefore in accordance with this Article 8, provided
that the Indemnified Party will not be entitled to consent to
the entry of any judgment or enter into any settlement of such
claim that does not include as an unconditional term thereof
the giving by each claimant or plaintiff to each Indemnifying
Party of a release from all liability in respect of such claim
without the prior written consent of the Indemnifying Party
if, pursuant to or as a result of such consent or settlement,
injunctive or other equitable relief would be imposed against
the Indemnifying Party or such judgment or settlement could
materially interfere with the business, operations or assets
of the Indemnifying Party.
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(c) REMEDIES CUMULATIVE. The remedies provided herein will be
cumulative and will not preclude assertion by any party of any rights
or the seeking of any other remedies against any other party. The
Shareholders hereby agree that they will not make any claim for
indemnification against Parent or the Company by reason of the fact
that any such Shareholder was a director, officer, employee, or agent
of the Company or was serving at the request of any such entity as a
partner, trustee, director, officer, employee or agent of another
entity (whether such claim is for judgments, damages, penalties, fines,
costs, amounts paid in settlement, losses, expenses or otherwise and
whether such claim is pursuant to any statute, charter document, bylaw,
agreement, or otherwise) with respect to any action, suit, proceeding,
complaint, claim or demand brought by Parent against such Shareholders
(whether such action, suit, proceeding, complaint, claim or demand is
pursuant to this Agreement, applicable law, or otherwise).
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 EXPENSES. The Parent and the Company (including the Shareholders)
will each bear their own costs and expenses relating to the transactions
contemplated hereby, including without limitation, fees and expenses of legal
counsel, accountants, investment bankers, brokers or finders, printers, copiers,
consultants or other representatives for the services used, hired or connected
with the transactions contemplated hereby.
9.2 AMENDMENT AND MODIFICATION. Subject to applicable Law, this
Agreement may be amended or modified by the parties hereto at any time with
respect to any of the terms contained herein; PROVIDED, HOWEVER, that all such
amendments and modifications must be in writing duly executed by all of the
parties hereto.
9.3 WAIVER OF COMPLIANCE; CONSENTS. Any failure of a party to comply
with any obligation, covenant, agreement or condition herein may be expressly
waived in writing by the party entitled hereby to such compliance, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition will not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. No single or partial exercise
of a right or remedy will preclude any other or further exercise thereof or of
any other right or remedy hereunder. Whenever this Agreement requires or permits
the consent by or on behalf of a party, such consent will be given in writing in
the same manner as for waivers of compliance.
9.4 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement will
entitle any person or entity (other than a party hereto and his, her or its
respective successors and assigns permitted hereby) to any claim, cause of
action, remedy or right of any kind.
9.5 NOTICES. All notices, requests, demands and other communications
required or permitted hereunder will be made in writing and will be deemed to
have been duly given and effective: (i) on the date of delivery, if delivered
personally; (ii) on the earlier of the fourth (4th) day after mailing or the
date of the return receipt acknowledgement, if mailed, postage prepaid, by
certified or registered mail, return receipt requested; or (iii) on the date of
transmission, if sent by facsimile, telecopy, telegraph, telex or other similar
telegraphic communications equipment, or to such other person or address as the
Company will furnish to the other parties hereto in writing in accordance with
this subsection.
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If to the Company or any Shareholder
prior to the Merger: With a copy to:
Slide View Corp. Xxxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxx, Xxxxx 00 The Xxxxxxxx Firm
Xxxxxx, Xxxxxxxxxx 00000 0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx: Xxxxx XxXxxxxx Xxxxxxx Xxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
or to such other person or address as either the Company or the Shareholders
will furnish to the other parties hereto in writing in accordance with this
subsection.
If to any Shareholder following the Merger, to the address set forth in
the Shareholder Representation Letter executed and delivered by such Shareholder
pursuant to Section 5.4(g) hereto.
If to the Parent: With a copy to:
XX Xxxxxxxxx Group Xxxxxxx Xxxxx & Xxxxx LLP
000 Xxxxxxxx Xxxx, Xxxxx 0000 0000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx Attn: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000 Fax: (000) 000-0000
or to such other person or address as Parent will furnish to the other
parties hereto in writing in accordance with this subsection.
9.6 ASSIGNMENT. This Agreement and all of the provisions hereof will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder will be assigned (whether
voluntarily, involuntarily, by operation of law or otherwise) by any of the
parties hereto without the prior written consent of the other parties.
9.7 GOVERNING LAW. This Agreement and the legal relations among the
parties hereto will be governed by and construed in accordance with the internal
substantive laws of the State of Nevada (without regard to the laws of conflict
that might otherwise apply) as to all matters, including without limitation
matters of validity, construction, effect, performance and remedies.
9.8 COUNTERPARTS. This Agreement may be executed simultaneously in one
or more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
9.9 HEADINGS. The table of contents and the headings of the sections
and subsections of this Agreement are inserted for convenience only and will not
constitute a part hereof.
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9.10 ENTIRE AGREEMENT. This Agreement, the Disclosure Schedule and the
exhibits and other writings referred to in this Agreement or in the Disclosure
Schedule or any such exhibit or other writing are part of this Agreement,
together they embody the entire agreement and understanding of the parties
hereto in respect of the transactions contemplated by this Agreement and
together they are referred to as this "Agreement" or the "Agreement." There are
no restrictions, promises, warranties, agreements, covenants or undertakings,
other than those expressly set forth or referred to in this Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the transaction or transactions contemplated by this Agreement,
including, but not limited to, the letter of intent dated August 21, 2000.
Provisions of this Agreement will be interpreted to be valid and enforceable
under applicable Law to the extent that such interpretation does not materially
alter this Agreement; PROVIDED, HOWEVER, that if any such provision becomes
invalid or unenforceable under applicable Law such provision will be stricken to
the extent necessary and the remainder of such provisions and the remainder of
this Agreement will continue in full force and effect.
9.11 REMEDIES AND INJUNCTIVE RELIEF. It is expressly agreed among the
parties hereto that monetary damages would be inadequate to compensate a party
hereto for any breach by any other party of its covenants in Article 4 hereof.
Accordingly, the parties agree and acknowledge that any such violation or
threatened violation will cause irreparable injury to the other and that, in
addition to any other remedies which may be available, such party will be
entitled to injunctive relief against the threatened breach of Article 4 hereof
or the continuation of any such breach without the necessity of proving actual
damages and may seek to specifically enforce the terms thereof.
9.12 DEFINITION OF MATERIAL ADVERSE EFFECT. "MATERIAL ADVERSE EFFECT"
with respect to the Company means a material adverse change in or effect on the
business, operations, financial condition, properties or liabilities of the
Company taken as a whole; provided, however, that a Material Adverse Effect will
not be deemed to include (i) changes as a result of the announcement of this
transaction, (ii) events or conditions arising from changes in general business
or economic conditions or (iii) changes in generally accepted accounting
principles.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
XX XXXXXXXXX GROUP SLIDE VIEW CORP.
By: /S/ XXXXXXX XXXXX By: /S/ XXXXXX X. XXXXXXXX
--------------------------------- --------------------------------
Xxxxxxx Xxxxx, President and Xxxxxx X. Xxxxxxxx,
Chief Executive Officer Chief Executive Officer
SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER
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