AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (herein, together with all
Exhibits, "Agreement") is entered in to as of November 9, 2001 by and between
Xxxxx'x Holdings, Inc., a Nevada corporation ("Xxxxx'x") and Sanitec Services of
Hawaii, Inc., a Hawaii corporation ("Sanitec").
This Agreement sets forth the terms and conditions upon which Sanitec will
be acquired by Xxxxx'x and operate as a wholly owned subsidiary (the "Merger"),
pursuant to an Agreement and Plan of Merger (the "Merger Agreement") in
substantially the form attached hereto as Exhibit A, which provides, among other
things, for the conversion and exchange of all outstanding and issued shares of
common stock of Sanitec ("Sanitec Shares") into 1,333,334 shares of voting $.001
par value common stock of Xxxxx'x ("Xxxxx'x Common Stock").
In consideration of the mutual promises and covenants contained herein,
Sanitec and Xxxxx'x agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms (whether used in singular
or plural forms) shall have the following meanings:
"Sanitec Shareholder" shall mean the sole shareholder of Sanitec, Sanitec
USA National, Inc. ("XXXXX"), as of the date of closing.
"Sanitec Shares" shall mean the Shares of the Common Stock of Sanitec to
be exchanged for shares of Xxxxx'x common stock to the Sanitec Shareholders.
"Closing Date" shall mean the date upon which the reorganization shall
have occurred in accordance with the terms and conditions set forth herein.
"Contract" means any written contract, mortgage, deed of trust, bond,
indenture, lease, license, note, franchise, certificate, option, warrant, right,
or other instrument, document or agreement, and any oral obligation, right or
agreement.
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"Controlled Group" means all trades or businesses (whether or not
incorporated) under common control that, together with Sanitec, are treated as a
single employer under Section 414(b) or 414(c) of the Code or Section 4001 of
ERISA.
"GAAP" means generally accepted accounting principles, as the term is
defined by the American Institute of Certified Public Accountants under the
first standard of reporting under its generally accepted accounting standards.
"Knowledge" of Sanitec of or with respect to any matter means that any of
the executive officers, directors or managers of Sanitec has, or after due
inquiry and investigation would have, actual awareness or knowledge of such
matter, and "Knowledge" of Xxxxx'x of or with respect to any matter means that
any of the executive officers, directors, or senior managers of Xxxxx'x has, or
after due inquiry and investigation would have, actual awareness or knowledge of
such matter.
"Legal Requirements" means applicable common law and any statute,
ordinance, code or other law, rule regulation, order, technical or other
standard requirement, judgment or procedure enacted, adopted, promulgated,
applied or followed by any governmental authority, including judgments.
"Lien" means any security agreement, financing statement filed with any
governmental authority, conditional sale statement filed with any governmental
authority, conditional sale or other title retention agreement, any lease
consignment or bailment given for purposes of security, any lien, mortgage,
indenture, pledge, option, encumbrance, adverse interest, constructive trust or
other trust, claim, attachment, exception to or defect in title or other
ownership interest (including but not limited to reservations, rights of entry,
possibilities of reverter, encroachments, casement, rights of way, restrictive
covenants leases and licenses) of any kind, which otherwise constitutes an
interest in or claim against property, whether arising pursuant to any Legal
Requirement, Contract or otherwise.
"Reorganization" shall mean the acquisition by Xxxxx'x of the Sanitec
Shares in exchange for the Xxxxx'x Shares as further defined herein.
"Xxxxx'x Shares" shall mean the Shares of the Common Stock of Xxxxx'x to
be issued to the Sanitec Shareholder.
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ARTICLE 2
Merger
Section 2.1 Plan and Agreement of Reorganization. A plan of reorganization
is hereby adopted to as follows:
A. Subject to the terms and conditions hereinafter set forth, on the
Closing Date, and in the manner hereinafter proved, (i) the Sanitec Shareholder
shall exchange the Sanitec Shares for the Xxxxx'x Shares in the amounts set
forth herein; Sanitec shall become a wholly owned subsidiary of Xxxxx'x and
Xxxxx'x shall be the parent corporation.
X. Xxxxx'x and Sanitec, respectively, shall take, or cause to be
taken, such action as may be necessary or appropriate in order to effectuate the
transactions contemplated hereby. Such action shall include, but not be limited
to, the filing of Articles of Merger with the Nevada and Hawaii Secretaries of
State. In the event that after the Closing Date, any further action is necessary
or desirable to carry out the purposes of this Agreement and to vest Xxxxx'x or
the Sanitec Shareholder with full title to the securities to be exchanged
hereby, the officers and directors of Xxxxx'x or the Sanitec Shareholder, as the
case may be, shall take all such necessary action.
Section 2.2 Effective Date of the Reorganization for Accounting Purposes.
The transactions contemplated by this Agreement shall be effective as of a date
to be mutually agreed upon for accounting purposes and for all other purposes to
the extent permissible by law.
Section 2.3 Consideration and Basis of Exchange of Shares. The manner and
basis of exchanging the Sanitec Shares for the Common Shares of Xxxxx'x shall be
as follows:
A. On the Closing Date, the Sanitec Shareholder shall deliver to
Xxxxx'x certificates aggregating 1,000 Sanitec Shares, or 100% of the issued and
outstanding Sanitec Shares, duly endorsed in favor of Xxxxx'x with signatures
guaranteed; the Sanitec Shareholders shall be issued, in exchange for the
Sanitec Shares held of record on the Closing Date, an aggregate of 1,333,334
Xxxxx'x Shares. The Sanitec Shareholder and Xxxxx'x agree that the Sanitec
Shares and the Xxxxx'x Shares exchanged hereby shall be "restricted securities"
as that term is defined in Rule 144 under the Securities Act of 1933, as amended
(the "1933 Act") and all
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certificates issued under this Agreement shall bear an appropriate legend to
such effect. Sanitec will have received the necessary approval of its
shareholders to this transaction.
B. The Xxxxx'x Board of Directors will fill its one vacancy by
appointing Xxxx Xxxxxxxxx as a new member of the Board.
X. Xxxxx'x, Sanitec and the Sanitec Shareholder shall enter into a
Non-Competition Agreement, a copy of which is attached hereto as Exhibit 2.3 and
incorporated herein by this reference which provides, among other things, that
the Sanitec shareholder shall not compete with Xxxxx'x or Sanitec in the State
of Hawaii for a period of ten years.
Section 2.4 Closing. Closing of this Agreement shall be held at a
date to be mutually agreed upon by the parties at the offices of Xxxxx'x, or
such other place as the parties may mutually agree. The parties shall exchange
such other documents and take such other actions as may be necessary or
appropriate for completing the transactions contemplated by the Agreement.
Section 2.5 Mechanics for Closing Merger. Upon the approval of the
Sanitec Shareholder, the executed Articles of Merger shall be filed with the
Nevada and Hawaii Secretaries of State, if required. Sanitec shall become a
wholly owned subsidiary of Xxxxx'x at Closing.
Section 2.6 Further Assurances. At or after Closing, Sanitec, at the
request of Xxxxx'x, shall promptly execute and deliver, or cause to be
delivered, to Xxxxx'x all such documents and instruments, in form and substance
satisfactory to Xxxxx'x, as Xxxxx'x reasonably may request in order to carry out
or evidence the terms of this Agreement.
ARTICLE 3
Representations and Warranties of Sanitec
Sanitec represents and warrants to Xxxxx'x, as of the date of this
Agreement and as of the Closing, as follows:
Section 3.1 Organization and Qualification of Sanitec. Sanitec is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Hawaii. Sanitec has full corporate power and authority to
conduct its business as now conducted and to own or lease and operate the assets
and property
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now owned or leased or operated by it. Sanitec is qualified to transact business
in those jurisdictions wherein its business requires such action.
Section 3.2 Authority. Sanitec has all requisite corporate power and
authority to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement by Sanitec has been duly and validly
executed and delivered by Sanitec, and is a valid and binding obligation of
Sanitec, enforceable against Sanitec in accordance with its terms.
Section 3.3 Ownership and Shareholders of Sanitec. The shareholder set
forth on Exhibit 3.3 owns the Sanitec Shares shown thereon, beneficially and of
record, free and clear of all liens. The Sanitec Shares are not subject to, or
bound or affected by, any proxies, voting agreements, or other restrictions on
the incidents or ownership hereof. There are not, and will not at Closing, be
more than one shareholder of Sanitec.
Section 3.4 Subsidiaries. Sanitec has no subsidiaries.
Section 3.5 No Conflicts; Required Consent. The execution, delivery, and
performance by Sanitec of this Agreement will not: (i) conflict with or violate
any provision of the articles or certificate of incorporation of Sanitec; (ii)
violate any Legal Requirements; (iii) result in the creation or imposition of
any Lien against or upon the Sanitec Shares or any of the assets or properties
owned or leased by Sanitec; or (iv) require any consent, approval, or
authorization of, or filing of any certificate, notice, application, report or
other document with, any governmental authority or other person.
Section 3.6 Litigation. There is no litigation pending or, to Sanitec's
knowledge, threatened, by or before any governmental authority or private
arbitration tribunal, against Sanitec or its operations, except as described in
Exhibit 3.6 attached hereto and incorporated herein by this reference, nor, to
Sanitec's knowledge, is there any basis for any such litigation.
Section 3.7 Compliance with Applicable Legal Requirements. Conduct by
Sanitec of its activities as currently conducted does not violate or infringe
any Legal Requirements currently in effect, or, to the knowledge of Sanitec,
proposed to become effective; and Sanitec has received no notice of any
violation by Sanitec, proposed to become effective; and Sanitec has received no
notice of
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any violation by Sanitec of any Legal Requirements applicable to Sanitec or its
activities as currently conducted; and Sanitec knows of no basis for the
allegation of any such violation.
Section 3.8 Financial Statements. Sanitec will deliver to Xxxxx'x the
audited balance sheet and statements of operations of Sanitec as of December 31,
1999 and 2000. The financial statements will be prepared in accordance with
United States GAAP and present fairly the financial position of Sanitec as of
the dates indicated and the results of operations of Sanitec for the periods
ended December 31, 1999 and 2000. In addition, Sanitec will provide financial
statements for the period ended June 30, 2001 which have been reviewed by its
auditor for SEC reporting requirements.
Section 3.9 Liabilities. Sanitec has no liabilities or obligations,
whether absolute, accrued, contingent, or otherwise, that are not reflected in
the Balance Sheet or non-delinquent obligations for ordinary and recurring
expenses, including expenses occurring in the ordinary course of business of
Sanitec since the date of the Balance Sheet. Attached as Exhibit 3.9 is a list
of all accounts payable of Sanitec.
Section 3.10 Tax Returns and Payments. Sanitec has filed all federal,
state, local and foreign tax returns required to be filed, and has timely paid
all taxes, including all federal and state payroll taxes, that have become due
and payable, whether or not so shown on any such tax returns, except as shown in
Schedule 3.10. Sanitec has not received any notice of, nor does Sanitec have any
knowledge of, any deficiency or assessment of proposed knowledge of, any
deficiency or assessment of proposed deficiency or assessment from any taxing
governmental authority except as disclosed in Schedule 3.10. There are no tax
audits pending with respect to Sanitec, and there are no outstanding agreements
or waivers by or with respect to Sanitec, that extend the statutory period of
limitations applicable to any federal, state, local or foreign tax returns for
any period except as disclosed in Schedule 3.10.
Section 3.11 Absence of Certain Changes or Events. Since the date of
Balance Sheet there has not occurred:
(a) any material and adverse change in the financial condition or
operations of Sanitec;
(b) any damage, destruction or loss to or of any of the material assets of
properties owned or leased by Sanitec;
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(c) the creation or attachment of any Lien against the Common Stock of
Sanitec;
(d) any waiver, release, discharge, transfer, or cancellation by Sanitec
of any rights or claims of material value;
(e) any issuance by Sanitec of any securities, or any merger or
consolidation of Sanitec with any other Person, or any acquisition by Sanitec of
the business of any other Person;
(f) any incurrence, assumption or guarantee by Sanitec of any indebtedness
or liability;
(g) any declaration, setting aside or payment by Sanitec of any dividends
on, or any other distribution with respect to, any capital stock of Sanitec or
any repurchase, redemption, or other acquisition of any capital stock of
Sanitec;
(h) (A) any payment of any bonus, profit sharing, pension or similar
payment or arrangement or special compensation to any employee of Sanitec,
except in the ordinary course of the administration of Sanitec, or (B) any
increase in the compensation payable to any employee of Sanitec; or
(i) the entry by Sanitec into any Contract to do any of the foregoing.
Section 3.12 Material Sanitec Contracts. As of the date of this Plan of
Reorganization, Sanitec does not have, except as discussed in Exhibit 3.12, (i)
contracts evidence or evidencing or relating to any liabilities or obligations
of Sanitec, whether absolute, accrued, contingent or otherwise, or granting any
Person a Lien or against any properties or assets owned or leased by Sanitec;
(ii) joint venture or partnership Contracts between Sanitec and any other
person; (iii) Contracts limiting the freedom of Sanitec to engage in or to
complete in any activity, or to use or disclose any information in its
possession; (iv) any guarantees of indebtedness for any other entity; and (v)
any other Contracts to which Sanitec is a party or by which it or the assets or
properties owned or leased by it are bound or affected that are not set forth on
other Exhibits hereto, which in aggregate contemplate payments to or by Sanitec
exceeding $5,000 in any twelve-month period (collectively herein as the
"Material Sanitec Contract"). Sanitec has delivered to Xxxxx'x true and complete
copies of each of the Material Sanitec Contracts, including any amendments
thereto
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(or, in the case or oral Material Sanitec Contracts, a memorandum of such
contract) and all Material Sanitec Contracts are valid, in full force and effect
and enforceable in accordance with its terms against the parties thereto other
than Sanitec, and Sanitec has fulfilled when due, or has taken all action
necessary to enable it to fulfill when due all of its obligations thereunder;
(ii) there has not occurred any default (without regard to lapse of time, the
giving notice, or the election of any person other then Sanitec, or any
combination thereof) by Sanitec, nor, to the knowledge of Sanitec, has there
occurred any default (without regard to lapse of time, the giving of notice, or
the election of Sanitec, or any combination thereof) by any other person, under
any of the Material Sanitec Contracts; and (iii) neither Sanitec nor, to the
knowledge of Sanitec, any other person is in arrears in the performance or
satisfaction of its obligation under any of the Material Sanitec Contracts, and
no waiver has been granted by any of the parties thereto.
Section 3.13 Real Property. As of the date of this Plan of Reorganization,
Sanitec does not own any real property.
Section 3.14 Employees. As of the date of this Plan of Reorganization,
Sanitec has one employee.
Section 3.15 Books and Records. All of the books, records and accounts of
Sanitec are in all material respects true and complete, are maintained in
accordance with good business practice and all applicable Legal Requirements,
accurately present and reflect in all material respects all of the transactions
therein described, and are reflected accurately in the Financial Statements.
Sanitec has previously delivered to Xxxxx'x true and complete copies of all the
minutes and meetings and all other corporate actions of the officers, directors
and shareholders of Sanitec since the date of its incorporation.
Section 3.16 Certain Interests. None of Sanitec or its officers or
directors, directly or indirectly is, or owns any interest in, or controls, or
is an employee, officer or director or partner of or participant in, or
consultant to, any person which is a competitor, supplier or customer of Sanitec
except as set forth in Schedule 3.16.
Section 3.17 Bank Accounts. Exhibit 3.17 sets forth all bank accounts,
brokerage accounts, and safe deposit boxes of any kind maintained by Sanitec
and, in each case, identifies the persons
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that are authorized signatories for, or which are authorized to have access to,
each of them.
Section 3.18 Changes in Circumstances. Sanitec has no knowledge of (i) any
current condition or state of facts of circumstances which could reasonably be
expected to result in a material and adverse change in the financial condition
of operations of Sanitec, or (ii) any Legal Requirements currently in effect
from which Sanitec currently is, or any currently proposed Legal Requirements
from which Sanitec would be, except by reason of any "grandfather" clauses of
provisions contained therein, but which would be applicable to Xxxxx'x following
closing.
Section 3.19 Accuracy of Information. None of the written information and
documents which have been or will be furnished by Sanitec or any representatives
of Sanitec to Xxxxx'x or any of the representatives of Xxxxx'x in connection
with the transactions contemplated by this Agreement contains or will contain,
as the case may be, any untrue statement of a material fact, or omits or will
omit to state a material fact necessary in order to make the statements therein
not misleading in light of the circumstances in which made. To the knowledge of
Sanitec, Sanitec has disclosed to Xxxxx'x as the purchaser of Sanitec Interests
all material information relating to Sanitec and its activities as currently
conducted.
Section 3.20 Investment. Sanitec is acquiring Xxxxx'x Common Stock for
investment purposes, and not with a view to distribution or resale thereof in
violation of applicable securities Legal Requirements.
Section 3.21 Compliance with ERISA. Sanitec does not maintain or
contribute to any Plan other than as set forth in Schedule 3.21. Sanitec and
each member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the applicable provisions of
ERISA and the Code, and have not incurred any liability to the PBGC or a Plan
under Title IV of ERISA; and no "prohibited transaction" or "reportable event"
(as such terms are defined in ERISA) has occurred with respect to any Plan.
Section 3.22 Environmental Matters.
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(a) Sanitec has obtained all permits, licenses and other
authorizations which are required under all Environmental Laws, except to the
extent failure to have any such permit, license or authorization would not have
a material adverse effect on the business, financial condition or operations of
Sanitec. Sanitec is in compliance with the terms and conditions of all such
permits, licenses and authorizations, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except to the extent failure to comply would not have a material adverse effect
on the business, financial condition or operations of Sanitec.
(b) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been filed, no
penalty has been assessed and no investigation or review is pending or
threatened by any governmental or other entity with respect to any alleged
failure by Sanitec or any of its Subsidiaries to have any permit, license or
authorization required in connection with the conduct of its business or with
respect to any Environmental Laws, including, without limitation, Environmental
Laws relating to the generation, treatment storage, recycling, transportation,
disposal or release of any Hazardous Materials.
(c) To the best of Sanitec's knowledge, no material oral or written
notification of a release of a Hazardous Material has been filed by or on behalf
of Sanitec and no property now or previously owned, leased or used by Sanitec is
listed or proposed for listing on the National Priorities List under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, or on any similar state list of sites requiring investigation or
clean-up.
(d) There are no liens or encumbrances arising under or pursuant to
any Environmental Laws on any of the real property or properties owned, leased
or used by Sanitec and no governmental actions have been taken or are in process
which could subject any of such properties to such liens or encumbrances or, as
a result of which Sanitec would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any property owned by it in
any deed to such property.
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(e) Neither Sanitec nor, to the best knowledge of Sanitec, any
previous owner, tenant, occupant or user of any property owned, leased or used
by Sanitec has (i) engaged in or permitted any operations or activities upon or
any use or occupancy of such property, or any portion thereof, for the purpose
of or in any way involving the handling, manufacture, treatment, storage, use,
generation, release, discharge, refining, dumping or disposal (whether legal or
illegal, accidental or intentional) of any Hazardous Materials on, under, in or
about such property, except in compliance with all Environmental Laws, or (ii)
transported any Hazardous Materials to, from or across such property except in
compliance with all Environmental Laws; nor to the best knowledge of Sanitec
have any Hazardous Materials migrated from other properties upon, about or
beneath such property, nor, to the best knowledge of Sanitec, are any Hazardous
Materials presently constructed, deposited, stored or otherwise located on,
under, in or about such property except in compliance with all Environmental
Laws.
Section 3.24 Franchises, Patents, Copyrights, Etc. Schedule 3.24 sets
forth an accurate and complete list of all franchises, patents, copyrights,
trademarks, trade names, trademark registrations, service names, service marks,
licenses, formulas and applications therefor owned by Sanitec or used or
required by Sanitec in the operation of its business, title to each of which is,
except as set forth in Schedule 3.24 hereto, held by Sanitec free and clear of
all adverse claims, liens, security agreements, restrictions or other
encumbrances. Except as set forth in Schedule 3.24, Sanitec owns or possesses
adequate (and will use its best efforts to obtain as expediently as possible any
additional) licenses or other rights to use all patents, trademarks, trade
names, service marks, trade secrets or other intangible property rights and
know-how necessary to entitle Sanitec to conduct its business as presently being
conducted. There is no infringement action, lawsuit, claim or complaint which
asserts that Sanitec's operations violate or infringe the rights or the trade
names, trademarks, trademark registrations, service names, service marks or
copyrights of others with respect to any apparatus or method of Sanitec or any
adversely held trademarks, trade names, trademark registrations, service names,
service marks or copyrights, and Sanitec is not in any way making use of any
confidential information or trade secrets of any person, except with the consent
of such person. Except as set forth in Schedule 3.24, Sanitec has taken
reasonable steps to protect its proprietary information (except disclosure of
source codes pursuant to licensing
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agreements) and is the lawful owner of the proprietary information free and
clear of any claim of any third party. Sanitec's proprietary rights are adequate
for the conduct of its business substantially as now conducted without known
conflict with any rights of others.
Section 3.25 No Materially Adverse Contracts, Etc. Sanitec is not subject
to any charter, corporate or other legal restriction, or any judgment, decree,
order, rule or regulation that has or is expected in the future to have a
materially adverse effect on the business, assets or financial condition of
Sanitec. Sanitec is not a party to any contract or agreement that has or is
expected, in the judgment of Sanitec's officers, to have any materially adverse
effect on the business of Sanitec.
Section 3.26 Compliance With Other Instruments, Laws, Etc. Sanitec is not
in violation of any provision of its certificate of incorporation, by-laws, or
any agreement or instrument to which it may be subject or by which it or any of
its properties may be bound, or any decree, order, judgment, statute, license,
rule or regulation, in any of the foregoing cases in a manner that could result
in the imposition of substantial penalties or materially and adversely affect
the financial condition, properties or business of Sanitec.
Section 3.27 Absence of UCC Financing Statements, Etc. There is no
financing statement, security agreement, chattel mortgage, real estate mortgage
or other document filed or recorded with any filing records, registry, or other
public office, that purports to cover, affect or give notice of any present or
possible future lien on, or security interest in, any Collateral or rights
thereunder.
Section 3.28 Certain Transactions. Except as set forth in Schedule 3.28,
none of the officers, trustees, directors, or employees of Sanitec is presently
a party to any transaction with Sanitec, including any contract, agreement or
other arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, trustee, director or employee or, to the
knowledge of Sanitec, any corporation, partnership, trust or other entity in
which any officer, trustee, director, or any employee has a substantial interest
or is an officer, director, trustee or partner.
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Section 3.29 Capitalization. Sanitec's authorized capital stock consists
solely of 1,000 shares of Common Stock, no par value per share, of which 1,000
fully diluted shares are issued and outstanding and no shares are reserved for
issuance upon the exercise or conversion of warrants, options and other rights
to purchase or otherwise obtain (by exchange or otherwise) shares of Common
Stock. All outstanding shares of Common Stock have been duly authorized, are
validly issued, fully paid and nonassessable.
Section 3.30 Fees/Commissions. Except as set forth in Schedule 3.30
hereto, Sanitec has not agreed to pay any finder's fee, commission, origination
fee or other fee or charge to any Person with respect to the transactions
contemplated hereunder.
Section 3.31 Employees. Sanitec has no current labor problems or disputes
which have resulted in, or are reasonably believed by Sanitec could have, a
material adverse effect on the operations, properties or financial condition of
Sanitec.
Section 3.32 Other Representations and Warranties. All representations,
warranties, and covenants made by Sanitec in connection with this transaction
are true and correct in all material respects, and do not omit to state a
material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF XXXXX'X
Xxxxx'x represents and warrants to Sanitec, as of the date of this
Agreement and as of Closing, as follows:
Section 4.1 Organization and Qualification of Xxxxx'x. Xxxxx'x is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Nevada, and has all requisite corporate power and authority
to own and lease the properties and assets it currently owns and leases and to
conduct its activities as currently conducted. Xxxxx'x is duly qualified to do
business as a foreign corporation in all jurisdictions in which the ownership or
leasing of the properties and assets owned or leased by it or the nature of its
activities makes such qualification necessary.
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Section 4.2 Authority. Xxxxx'x has all requisite corporation and authority
to execute, deliver and perform this Agreement. The execution, delivery, and
performance of this Agreement by Xxxxx'x have been duly and validly authorized
by all necessary action on the part of Xxxxx'x. This Agreement has been duly and
validly executed and delivered by Xxxxx'x and is the valid and binding
obligation of Xxxxx'x, enforceable against Xxxxx'x in accordance with its terms.
Section 4.3 No Conflicts; Required Consents. The execution, delivery and
performance by Xxxxx'x of this Agreement does not and will not: (i) conflict
with or violate any provisions of the articles of certificate of incorporation
or bylaws of Xxxxx'x; (ii) violate any provisions of any Legal Requirements; or
(iii) conflict with, violate result in a breach of, constitute a default under
(without regard to requirements of notice, lapse of time, or elections of other
persons, or any combination thereof) or accelerate or permit the acceleration of
the performance required by, and Contract or Lien to which Xxxxx'x is a party or
by which Xxxxx'x or the assets or properties owned or leased by it are bound or
affected; or (iv) require any consent, approval or authorization, report or
other document with, any Governmental Authority or other person.
Section 4.4 Validity and Ownership of Xxxxx'x Common Stock. The Xxxxx'x
Common Stock received by the members of Sanitec at Closing will be validly
issued and outstanding, duly paid and nonassessable. The Xxxxx'x Common Stock
will not be subject to, nor bound or affected by, any proxies, voting
agreements, or other restrictions on the ownership thereof.
Section 4.5 Ownership and Number of Shares of Xxxxx'x Common Stock. There
are not, and will not at Closing, be more than 8,402,046 outstanding shares of
Xxxxx'x Common Stock.
Section 4.6 Subsidiaries. Xxxxx'x has two subsidiaries: 20/20 Web Design,
Inc., a Nevada corporation and Universal Medical Alliance Corp., a Colorado
corporation.
Section 4.7 Capitalization of Xxxxx'x. The authorized capital stock of
Xxxxx'x consists of 50,000,000 duly authorized shares of common stock $.001 per
share par value, of which 8,402,046 are validly issued and outstanding, fully
paid and nonassessable. There are no other authorized or outstanding
subscriptions, options, convertible securities, warrants, calls or other rights
or any kind issued or granted by, or binding upon, Xxxxx'x to purchase
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or otherwise acquire any securities of or equity interest in Xxxxx'x.
Section 4.8 Litigation. There is no litigation pending or, to Xxxxx'x
knowledge, threatened, by or before any governmental authority or private
arbitration tribunal, against Xxxxx'x or its operations, nor, to Xxxxx'x
knowledge, is there any basis for any such litigation.
Section 4.9 Liabilities. Except as disclosed in Exhibit 4.10, Xxxxx'x has
no liabilities or obligations, whether absolute, accrued, contingent, or
otherwise that have not been disclosed to Sanitec.
Section 4.10 Tax Returns and Payments. Except as disclosed in Schedule
4.11, Xxxxx'x has filed all federal, state, local and foreign tax returns
required to be filed, and has timely paid all taxes that have become due and
payable, whether or not so shown on any such tax returns. Xxxxx'x has not
received any notice of, nor does Xxxxx'x have any knowledge of, any deficiency
or assessment of proposed knowledge of, any deficiency or assessment of proposed
deficiency or assessment from any taxing governmental authority. There are no
tax audits pending with respect to Xxxxx'x, and there are no outstanding
agreements or waivers by or with respect to Xxxxx'x, that extend the statutory
period of limitations applicable to any federal, state, local or foreign tax
returns for any period. Xxxxx'x makes no representation or warranty concerning
whether or not its net operating loss carryforwards will be available for use by
Sanitec following this transaction.
Section 4.11 Books and Records. All of the books, records and accounts of
Xxxxx'x are in all material respects true and complete, are maintained in
accordance with good business practice and all applicable Legal Requirements,
accurately present and reflect in all material respects all of the transactions
therein described, and are reflected accurately in the Financial Statements.
Xxxxx'x has previously delivered to Sanitec the complete stock record book of
Xxxxx'x and true and complete copies of all the minutes and meetings and all
other corporate actions of the stockholders, Board of Directors and committees
of the Board of Directors of Xxxxx'x since the date of its incorporation.
Section 4.12 Accuracy of Information. None of the written information and
documents which have been or will be furnished by Xxxxx'x or any representatives
of Xxxxx'x to Sanitec or any of the
15
representatives of Sanitec in connection with the transactions contemplated by
this Agreement contains or will contain, as the case may be, any untrue
statement of a material fact, or omits or will omit to state a material fact
necessary in order to make the statements therein not misleading in light of the
circumstances in which made. To the knowledge of Xxxxx'x, Xxxxx'x has disclosed
to Sanitec as the purchaser of Xxxxx'x common stock all material information
relating to Xxxxx'x and its activities.
ARTICLE 5
Covenants of Sanitec and Xxxxx'x
Section 5.1 Affirmative Covenants of Sanitec. Except as Xxxxx'x may
otherwise consent in writing, between the date of this Agreement and Closing,
Sanitec shall:
(a) conduct its business only in the usual, regular and ordinary course
and in accordance with past practices;
(b) (1) duly comply with all applicable Legal Requirements; (2) perform
all of its obligations under all Sanitec Contacts without default; and (3)
maintain its books, records, and accounts on a basis consistent with past
practices;
(c) (1) give to Xxxxx'x its counsel, accountants and other representatives
reasonable access during normal business hours to the premises of Sanitec, all
of the assets and properties owned or leased by Sanitec, Sanitec's books and
records, and Sanitec's personnel; (2) furnish to Xxxxx'x and such
representatives all such additional documents (certified by an officer of
Sanitec, if requested), financial information and other information as Sanitec
may from time to time reasonably request and (3) cause Sanitec's accountants to
permit Xxxxx'x and its accountants to examine the records and working papers
pertaining to Sanitec's financial statements' provided that no investigation by
Xxxxx'x of its representatives will affect or limit the scope of any of the
representations and warranties of Sanitec herein or in any other related
document;
(d) use of best efforts to obtain in writing as promptly as possible all
approvals and consents required to be obtained by Sanitec in order to consummate
the transactions contemplated hereby and deliver to Xxxxx'x copies, satisfactory
in form and substance to Xxxxx'x, of such approvals and consents;
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(e) promptly deliver to Xxxxx'x true and complete copies of all monthly
and quarterly financial statements of Sanitec and any reports with respect to
the activities of Sanitec which are prepared by or for Sanitec at any time from
the date hereof until Closing; and
(f) promptly notify Xxxxx'x of any circumstances, event or action, by
Sanitec or otherwise, (A) which, if known at the date of this Agreement, would
have been required to be disclosed in or pursuant to this Agreement, or (B) the
existence, occurrence or taking of which would result in any of the
representations and warranties of Sanitec in this Agreement or in any
Transaction Documents not being true and correct in all material respects.
Section 5.2 Negative Covenants of Sanitec. Except as Xxxxx'x may otherwise
consent in writing, between the date of this Agreement and Closing, Sanitec
shall not:
(a) change the character of its business;
(b) incur any liability or obligation or enter into any Contract except,
in each case, in the ordinary course of business consistent with prior practices
and not prohibited by any other provision hereof;
(c) incur, assume or guarantee any indebtedness or liability in respect of
borrowed money;
(d) make any capital expenditure or commitment for capital expenditure
exceeding $5,000 for a single project or $10,000 for all projects, whether or
not in the ordinary course of business, or waive, lease, discharge, transfer or
cancel any rights or claims of material value;
(e) modify, terminate, or abrogate any Material Sanitec Contact other than
in the ordinary course of business, or waive, lease, discharge, transfer or
cancel any rights or claims of material value;
(f) create or permit the creation or attachment of any Lien against any of
the assets or properties owned or leased by it;
(g) except as otherwise required by this Agreement, prepay any material
liabilities or obligations;
17
(h) issue any securities, or merge or consolidate with any other person or
acquire any of the securities, partnership or joint venture interests, or
business of any other person;
(i) declare, set aside or pay any dividends on, or make any other
distribution with respect to, any of its capital stock, or repurchase, redeem,
or otherwise acquire any of its capital stock; and
(j) enter into any transaction or permit the taking of any action that
would result in any of the representations and warranties in this Agreement not
being true and correct in all material respects at Closing.
Section 5.3 Covenants of Xxxxx'x. Except as Sanitec may otherwise agree in
writing, between the date of this Agreement and Closing, Xxxxx'x shall:
(a) use it best efforts to obtain in writing as promptly as possible all
approvals and consents required to be obtained by Xxxxx'x in order to consummate
the transaction contemplated hereby and deliver to Sanitec copies, satisfactory
in form and substance to Sanitec, of such approvals and consents;
(b) promptly notify Sanitec of any circumstance, event or action, by
Xxxxx'x or otherwise, (i) which, if known at the date of this Agreement, would
have been required to be disclosed in or pursuant to this Agreement, or (ii) the
existence, occurrence or taking of which would result in any of the
representations and warranties of Sanitec in this Agreement or in any
Transaction Document not being true and correct in all material respects;
(c) undertake all other actions necessary to put into force and effect
this Agreement.
Section 5.4 Joint Undertakings. Each of Xxxxx'x and Sanitec shall
cooperate and exercise commercially reasonable efforts to facilitate the
consummation of the transactions contemplated by this Agreement so as to permit
Closing to take place on the date provided herein and to raise the satisfaction
of conditions to Closing set forth in Article 6. Both parties hereto agree that
they will use their best efforts to cause a Form 8-K to be filed with the
Securities and Exchange Commission concerning this transaction which Form 8-K
will require audited financial
18
statements for Sanitec and pro forma financial information for the companies as
merger.
Section 5.5 Confidentiality.
(a) Any non-public information that Xxxxx'x may obtain from Sanitec in
connection with this Agreement, including but not limited to information
concerning trade secrets, licenses, research projects, costs, profits, markets,
sales, customer lists, strategies, plans for future development and any other
information of a similar nature, shall be deemed confidential and, unless and
until Closing shall occur, Xxxxx'x shall not disclose any such information to
any third party (other than its directors, officers and employees and persons
whose knowledge thereof is necessary to facilitate the consummation of the
transactions contemplated hereby) or use such information to the detriment of
Sanitec; provided that (i) Xxxxx'x may use and disclose any such information
once it has been publicly disclosed (other than by Xxxxx'x in breach of its
obligations under this Section) or which rightfully has come into the possession
of Xxxxx'x (other than from Sanitec) and (ii) to the extent that Xxxxx'x may
become complied by Legal Requirements to disclose any of such information,
Xxxxx'x may disclose such information if it shall have used all reasonable
efforts, and shall have afforded Sanitec the opportunity to obtain an
appropriate protective order, or other satisfactory assurance of confidential
treatment for the protective order, or other satisfactory assurance of
confidential treatment, for the information compelling to be disclosed. In the
event of termination of this Agreement, Xxxxx'x shall use all reasonable efforts
to cause to be delivered to Sanitec, and retain no copies of, any documents,
work papers and other materials obtained by Xxxxx'x or on its behalf from
Sanitec, whether so obtained before or after the execution hereof.
(b) Any non-public information that Sanitec may obtain from Xxxxx'x in
connection with this Agreement, including but not limited to information
concerning trade secrets, licenses, research projects, costs, profits, markets,
sales, customer lists, strategies, plans for future development and any other
information of a similar nature, shall be deemed confidential and, unless and
until Closing shall occur, Sanitec shall not disclose any such information to
any third party (other than its directors, officers and employees, and persons
whose knowledge thereof is necessary to facilitate the consummation of the
transactions contemplated hereby) or use such information to the detriment of
Xxxxx'x;
19
provided that (i) Sanitec may use and disclose any such information once it has
been publicly disclosed (other than by Sanitec in breach of obligations under
this Section) or which rightfully has come into the possession of Sanitec (other
than from Xxxxx'x) and (ii) to the extent that Sanitec may become complied by
Legal Requirements to disclose any of such information, Sanitec may disclose
such information if it shall have used all reasonable efforts, and shall have
afforded Xxxxx'x the opportunity, to obtain an appropriate protective order, or
other satisfactory assurance of confidential treatment, for the information
compelled to be disclosed. In the event of termination of this Agreement,
Sanitec shall use all reasonable efforts to cause to be delivered to Xxxxx'x,
and retain no copies of, any documents, work papers and other materials obtained
by Sanitec or on its behalf from Xxxxx'x, whether so obtained before or after
the execution hereof.
Section 5.6 Publicity. Xxxxx'x and Sanitec shall each consult with and
obtain the consent of the other before issuing any press release or making any
other public disclosure concerning this Agreement or the transactions
contemplated hereby unless, in the reasonable judgment of the disclosing party,
a release or disclosure is required to discharge its disclosure obligations
under applicable legal requirements, in which case it shall in good faith
consult with the other party about the form, content and timing of such release
or disclosure prior to its release of disclosure.
ARTICLE 6
Conditions Precedent
Section 6.1 Conditions to Sanitec's Obligations. The obligations of
Sanitec to consummate the transactions contemplated by this Agreement are
subject to the following conditions:
(a) Accuracy of Representations. The representations of Xxxxx'x in this
Agreement or in any Transaction Document shall be true and accurate in all
material respects at and as of Closing with the same effect as if made at and as
of Closing, except as affected by the transactions contemplated hereby.
(b) Performance of Agreements. Xxxxx'x shall have performed all
obligations and agreements and complied with all covenants in this Agreement to
be performed and complied with by it at or before Closing.
20
(c) Officers's Certificate. Sanitec shall have received a certificate
executed by an executive officer of Xxxxx'x, dated as of Closing, reasonably
satisfactory in form and substance to Sanitec certifying that the conditions
stated in subparagraphs (a) and (b) of this Section have been satisfied.
(d) Legal Proceedings. There shall be no Legal Requirement, and no
judgment shall have been entered and not vacated by any governmental authority
of competent jurisdiction and no litigation shall be pending which restrains,
makes illegal or prohibits consummation of the transactions contemplated hereby.
(e) Consents. Sanitec shall have obtained evidence, in form and substance
satisfactory to it, that there have been obtained all consents, approvals and
authorizations required by this Agreement.
(f) Legal Matters Satisfactory to Sanitec's Counsel. All actions,
proceedings, instruments and documents required to carry out the transactions
contemplated by this Agreement or incidental thereto and all related matters
shall be reasonably satisfactory to and approved by Sanitec's counsel, and such
counsel shall have been furnished with such certified copies of actions and
proceedings and such other instruments and documents as it shall have reasonably
requested.
(g) Opinion of Counsel Concerning Organization and Transaction. Sanitec
shall have received from counsel for Xxxxx'x a favorable opinion addressed to
Sanitec and dated as of the Closing Date, satisfactory in form and content to
Sanitec, concerning the organization and this transaction.
Section 6.2 Conditions to Xxxxx'x' Obligations. The obligations of Xxxxx'x
to consummate the transactions contemplated by this Agreement are subject to the
following conditions:
(a) Accuracy of Representations. The representations of Sanitec in this
Agreement or in any Transaction Document shall be true and accurate (in all
material respects) at and as of Closing with the same effect as if they were
made at and as of Closing, except as afforded by the transactions contemplated
hereby.
(b) Performance of Agreements. Sanitec shall have performed all
obligations and agreements and complied with all covenants in
21
this Agreement or in any Transaction Document to which it is a party to be
performed and complied with by it at or before closing.
(c) Officers's Certificate. Xxxxx'x shall have received a certificate
executed by an executive officer of Sanitec, dated as of Closing, reasonably
satisfactory in form and substance to Xxxxx'x, certifying that the conditions
stated in subparagraphs (a) and (b) of this Section have been satisfied.
(d) Legal Proceedings. There shall be no Legal Requirement, and no
judgment shall have been entered and not created by any governmental authority
of competent jurisdiction and no litigation shall be pending which restrains,
makes illegal or prohibits consummation of the transactions contemplated hereby.
(e) Consents. Xxxxx'x shall have obtained evidence, in form and substance
satisfactory to it, that there have been obtained all consents, approvals and
authorizations required by this Agreement.
(f) Legal Matters Satisfactory to Xxxxx'x Counsel. All actions, proceedings,
instruments and documents required to carry out the transactions contemplated by
this Agreement or incidental thereto and all related legal matters shall be
reasonably satisfactory to and approved by Xxxxx'x counsel, and such counsel
shall have been furnished with such copies of actions and proceedings and such
other instruments and documents as it shall have reasonably requested.
(g) Opinion of Counsel Concerning Organization and Transaction. Xxxxx'x
shall have received from counsel for Sanitec a favorable opinion addressed to
Xxxxx'x and dated as of the Closing Date, satisfactory in form and content to
Xxxxx'x, concerning the organization and this transaction.
ARTICLE 7
Indemnification
Section 7.1 Indemnification by Sanitec Shareholders. From and after the
Closing, the Sanitec Shareholder shall indemnify and hold harmless Xxxxx'x, its
officers, directors, agents and representatives, and any person claiming by or
through any of them as the case my be, from and against any and all losses and
related expenses arising out of or resulting from:
22
(a) any representations and warranties of Sanitec in this Agreement not
being true and accurate when made or when required by this Agreement to be true
and accurate; or
(b) any failure by Sanitec to perform any of its covenants, agreements or
obligations in this Agreement; or
(c) all undisclosed abilities and obligations relating to, or arising out
of activities of Sanitec during periods prior to Closing.
Section 7.2 Indemnification by Xxxxx'x. From and after the Closing,
Xxxxx'x shall indemnify and hold harmless Sanitec, its officers, directors,
agents and representatives, and any person claiming by or through any of them as
the case my be, from and against any and all losses and related expenses arising
out of or resulting from:
(a) any representations and warranties of Xxxxx'x in this Agreement not
being true and accurate when made or when required by this Agreement to be true
and accurate; or
(b) any failure by Xxxxx'x to perform any of its covenants, agreements or
obligations in this Agreement; or
(c) all undisclosed abilities and obligations relating to, or arising out
of activities of Xxxxx'x during periods prior to Closing.
Section 7.3 Indemnification Against Third Party Claims. Promptly after
receipt entitled to indemnification hereunder (the "Indemnitee") of written
notice of the assertion of any claim or the commencement of any Litigation with
respect to any matter referred to Sections 7.1 or 7.2, the Indemnitee shall give
written notice thereof to the party from whom indemnification is sought pursuant
hereto (the "Indemnitor") and thereafter shall keep the Indemnitor reasonably
informed with respect thereto, may provided that failure of the Indemnitee to
give the Indemnitor notice as provided herein shall not relieve the Indemnitor
of its obligations hereunder. In case any litigation is brought against any
Indemnitee, the Indemnitor shall be entitled to participate in (and at the
request of the Indemnitee shall assume) the defense thereof with counsel
satisfactory to Indemnitee at the Indemnitor's expense. If the Indemnitor, at
the Indemnitee's request, shall assume the defense of any settlement shall
include as an
23
unconditional term thereof the giving by the claimant or the plaintiff of a
release of the Indemnitee, satisfactory to the Indemnitee, from all liability
with respect to such litigation.
Section 7.4 Time and Manner of Certain Claims. The representations and
warranties of Xxxxx'x and the Principal Shareholders in this Agreement shall
survive Closing; provided, however, that neither Xxxxx'x nor the Members shall
have any liability under Section 7.1 or 7.2, respectively, unless a claim is
asserted by the party seeking indemnification thereunder by written notice to
the party from whom indemnification is sought within three years after Closing,
and such party commences litigation seeking such indemnification within 180 days
following the date of such notice.
Section 7.5 Effect of de minimus Damage on Indemnity by Principal
Shareholders. The Members shall have no indemnity obligations under this Article
7 unless aggregate amount payable by them under this Article 7 is in excess of
$10,000.
Section 7.6 Tax Effect. In calculating amount payable to an Indemnitee
hereunder (i) the amount of the indemnified losses shall be reduced by the
amount of any reduction in the Indemnitee's liability for taxes resulting from
the facts or occurrence giving rise to the indemnified losses; and (ii) the
amount of the indemnified losses shall be grossed up by the amount of any
increase in liability for taxes resulting from indemnification with respect
thereto.
ARTICLE 8
Termination
Section 8.1 Termination Events. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned:
(a) at any time, by the mutual agreement of Xxxxx'x and Sanitec.
(b) by either Xxxxx'x and Sanitec, if the other is in material breach or
default of its respective covenants, agreements or other obligations hereunder
or if any of its representations and warranties herein are not true and accurate
in all material respects when made or when otherwise required by this Agreement
to be true and accurate.
24
(c) by either Xxxxx'x or Sanitec upon written notice to the other, if the
transactions contemplated by this Agreement are not consummated on or prior to
December 31, 2001, for any reason other than material breach or default by such
party of its respective representations, warranties, covenants, agreements or
other obligations hereunder.
Section 8.2 Effect of Termination. If this Agreement shall be terminated,
all obligations of the parties hereunder shall terminate, except for the
obligations set forth in section 5.5, 5.6 and 9.3.
ARTICLE 9
Miscellaneous
Section 9.1 Expenses. Each party shall pay its own expenses incurred as a
result of this transaction.
Section 9.2 Waiver and Modifications. Any of the provisions of this
Agreement may be waived at any time by the party entitled to the benefit
thereof, upon the authority of the Board of Directors of such party. Any of the
provisions of this Agreement (including the exhibits and the Agreement of
Merger) may be modified at any time prior to and after the vote of the Sanitec
Shareholders by agreement in writing approved by the Board of Directors of each
party and executed in the same manner (but necessarily by the same persons) as
this Agreement, provided that such modification, after the last vote of the
Sanitec Shareholders shall not be allowed, if in the judgment of the Board of
Directors of Sanitec, it affects materially and adversely the benefits of
Sanitec's Shareholders under this Agreement of Merger. To the extent permitted
by law, the powers of the Board of Directors may be delegated by the Board of
the Executive Committee of such Board or by such Board (or by the Executive
Committee to the extent any matter has been delegated to such Committee by the
Board) to any officer or officers of such party, and any notices, consents or
other action referred to in this Agreement may be given or taken by any officer
so authorized.
Section 9.3 Finder commissions. Xxxxx'x and Sanitec each represents and
warrants that no broker or finder is entitled to any brokerage or finder's fee
or other commission based on agreements, arrangements or understandings made by
it with respect to the transactions contemplated by this Agreement or by the
Agreement of Merger, other than set forth in Exhibit 9.3.
25
Section 9.4 Notices. Any notice request, instruction or other documents to
be given hereunder or under the Agreement of Merger by any part to another shall
be in writing and delivered personally or sent by registered or certified mail,
postage prepaid,
if to Xxxxx'x, addressed to:
Xxxxx'x Holdings, Inc.
00000 Xxxxxx Xxxxxx Xxxxx 000
Xxxxxxxx Xxxxx XX 00000
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxx Attorney At Law
00000 Xxxxxx Xxxxxx Xxxxx 000
Xxxxxxxx Xxxxx XX 00000
if to Sanitec, addressed to:
Sanitec Services of Hawaii, Inc.
0000 Xx'xxxx Xxxxxx
Xxxxxxxx XX 00000
Section 9.5 Abandonment. At any time before the effective Date, this
Merger Agreement may be terminated and the merger may be abandoned by the Board
of Directors of Xxxxx'x or Sanitec or both, notwithstanding approval of this
Agreement by the Sanitec Shareholder or Xxxxx'x Shareholders or both.
Section 9.6 Entire Agreement. This Agreement and Plan of Merger represents
the entire agreement between the parties. Any and all oral or written agreements
concerning this merger shall be deemed null and void.
Section 9.6 Governing Law. This Agreement shall be governed by, construed,
and enforced in accordance with the laws of the State of Nevada.
Section 9.7 Counterparts. In order to facilitate the filing and recording
of this Merger Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
26
IN WITNESS WHEREOF, Xxxxx'x and Sanitec, by their duly authorized
officers, have executed and delivered this Agreement effective as of the date
first above written.
Xxxxx'x Holdings, Inc.
By:/s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx, President
Sanitec Services of Hawaii, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxx, CEO
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