STOCK FOR STOCK EXCHANGE AGREEMENT
Exhibit
10.1
THIS STOCK FOR STOCK EXCHANGE
AGREEMENT (“Agreement”) is made and entered into as of the effective
closing date of February 11, 2008, by and between the Ruettiger Family Trust, on
behalf of itself and the other shareholders of Xxxx Beverage, Inc., a Nevada
corporation (“Xxxx” or
other “Company”), listed on Schedule “A” (“Xxxx Shareholders”), Xxxx, Xxxx Partners, Ltd., a
Nevada Corporation and AccuPoll
Holding Corp. (“ACUP”), a Nevada corporation.
W I T N E S S E T
H:
WHEREAS, the Xxxx Shareholders
owns an aggregate of 40,800,000 outstanding common stock (“Shares”) of Xxxx,
which constitutes all of the issued and outstanding shares of the
Company;
WHEREAS, the Xxxx Shareholders
wishes to exchange all of the Shares with ACUP solely for restricted ACUP Common
Stock (“Common Stock”), pursuant to the terms and conditions set forth
herein;
WHEREAS, the parties intend
that this transaction qualify as Reorganization within the meaning of section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in
consideration of the premises and the mutual agreements and covenants hereafter
set forth, ACUP, the Xxxx Shareholders, Xxxx and the Company hereby agree as
follows:
ARTICLE
1.
EXCHANGE OF
SHARES
Section
1.01 Exchange of Shares: (a) Subject to the terms and
conditions hereof, on the Closing Date (as defined below) the Xxxx Shareholders
shall transfer the Shares to ACUP in exchange for the transfer to the Xxxx
Shareholders by ACUP of the 35,000,000 shares of Common Stock:
(b)
The Xxxx Shareholders shall hereafter have the right to nominate all of the
persons to serve on ACUP’s board of directors, and such person shall be included
in the Management nominees for the board of directors. ACUP shall use
its best efforts to assure that such nominees are elected to the board of
directors.
Section
1.02 Closing Date: The consummation of the purchase and sale
of the Shares hereunder (the “Closing”) shall be held at the office of the
Company at 5:00 P.M. (Local Time) on the effective closing date of February 11,
2008, or at such other time and place as The Xxxx Shareholders and ACUP may
mutually agree (the “Closing Date”).
ARTICLE
II.
REPRESENTATIONS AND
WARRANTIES OF THE XXXX SHAREHOLDERS
Section
2.01 Representations of The Xxxx Shareholders. The Xxxx
Shareholders represents and warrants to ACUP that the following is true and
correct as of the date hereof and shall be true and correct as of the Closing
Date:
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(a)
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Existence. The
Company is a corporation duly organized and validly existing under the
laws of Nevada;
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(b)
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Authorization; No
Violation. The execution, delivery and performance by
The Xxxx Shareholders of this Agreement are within The Xxxx Shareholder’s
powers, have been duly authorized by all necessary action, and do not
contravene in any material respect any Requirement of Law or Contractual
Obligation of any of the Xxxx Shareholders. As used herein,
“Requirement of
Law” shall mean, as to any Person, the certificate of incorporation
and bylaws or other organizational or governing documents of such Person,
if applicable, and any law, treaty, rule or regulation, or determination
of an arbitrator or any court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject. As used
herein, “Contractual
Obligation” shall mean, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound. As used herein, “Person” shall
mean an individual or any corporation, association, partnership, joint
venture, estate, trust or other legal entity, including any Governmental
Authority. As used here, “Governmental
Authority” shall mean any nation or government, any state or other
political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government;
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(c)
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Government and Other
Consents. No authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority is
required to be obtained or made, and no consent of any third party is
required to be obtained by the Xxxx Shareholders for the due execution,
delivery and performance by the Xxxx Shareholders of this
Agreement;
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(d)
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Enforceable
Obligations. This Agreement has been duly executed and
delivered on behalf of the Xxxx Shareholders and constitutes the legal,
valid and binding obligation of the Xxxx Shareholders enforceable against
the Xxxx Shareholders in accordance with its terms and conditions, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general principles of
equity;
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(e)
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No
Litigation. No claim, action, suit, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of the Xxxx Shareholders, threatened by or
against the Xxxx Shareholders with respect to the Company, by this
Agreement or any of the transactions contemplated hereby. To
the best of the Xxxx Shareholders’ knowledge, no judgment, order, writ,
injunction, decree or award issued by any Governmental Authority is
applicable to the Xxxx Shareholders, which affects any of the Shares, the
Company, this Agreement or any of the transactions contemplated
hereby;
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(f)
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Ownership of the
Shares. Each of the Xxxx Shareholders is the owner of record and
beneficially of the number of issued and outstanding shares listed in
Schedule 2.01(f). All of the Shares are free and clear of any
liens, claims and encumbrances (collectively,
“Encumbrances”). The Xxxx Shareholders has the right to
transfer title to the Shares to ACUP. There are no commitments,
agreements or rights relating to the purchase, sale or other disposition
of the Shares or any interest therein (including, without limitation, any
subscription agreement, preemptive right or right of first
refusal). None of the Shares are subject to any voting trust,
voting agreement, or other similar agreement or
understanding with respect to the voting or control thereof,
nor is any proxy in existence with respect to any of the
Shares. Upon the sale of the Shares to ACUP pursuant to this
Agreement, ACUP will own the Shares free and clear of all
Encumbrances;
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(g)
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Disclosure. No
representation or warranty made by the Xxxx Shareholders in this Agreement
and in any schedule or exhibit hereto, to the best knowledge of the Xxxx
Shareholders, contains any untrue statement of material fact or omits any
material fact in order to make the statements made and information
contained therein as of the date hereof not
misleading;
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(h)
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Brokers,
Finders. The Xxxx Shareholders have no liability or
obligation to pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this Agreement for which
Xxxx could become liable or
obligated.
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Section
2.02 Representations of the Xxxx Shareholders as to the
Company. The Xxxx Shareholders represents and warrants to ACUP
that the following is true and correct with respect to the Company as of the
date hereof and shall be true and correct as of the Closing Date:
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(a)
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Organizations,
Standing and Qualification of the Company. The Company
is a corporation duly organized, validly existing and in good standing
under the laws of Nevada and the Company has all necessary corporate power
and authority to engage in the business in which it is presently
engaged. The Company has not qualified to do business as a
foreign corporation in any state. The Xxxx Shareholders has
delivered to Xxxx true, correct and complete copies of the certificate of
incorporation and bylaws of the Company, and all amendments
thereto;
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(b)
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Capital Structure of
the Company. The authorized capital stock of the Company
consists of 100,000,000 shares of common stock of which 40,800,000 shares
are issued and outstanding. No other class or series of capital
stock of the Company is or has been authorized, nor has the Company
authorized or issued, nor does it have outstanding, any other securities
(including, without limitation, options, warrants, conversion privileges
or other rights, contingent or otherwise, to exchange any capital stock or
other securities of the Company). All of the Shares are duly
authorized, validly issued, fully paid and non-assessable. All
of the Shares were issued in compliance with all applicable Requirements
of Law (including securities laws) and in compliance with the certificate
of incorporation and bylaws of the Company. There are no
outstanding subscriptions for any securities to be issued by the
Company;
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(c)
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No Violation of
Statute or Breach of Contract. To the best knowledge of
the Xxxx Shareholders, the Company is not in default under, or in
violation of, (a) any material applicable Requirement of Law, or (b) any
material Contractual Obligation. The Company has not received
notice that any Person claims that the Company has committed such a
default or violation;
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(d)
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Government and Other
Consents. No consent, authorization, license, permit,
registration or approval of, or exemption or other action by, any
Governmental Authority is required to be obtained or made, and no consent
of any third party is required to be obtained by the Company in connection
with the execution and delivery of this Agreement or with the consummation
of the transactions contemplated
hereby;
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(e)
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Effect of
Agreement. The execution and delivery of this Agreement
by the Xxxx Shareholders, performance of the obligations of the Xxxx
Shareholders hereunder and consummation of the transactions contemplated
hereby will not (i) result in a breach or violation of any Requirement of
Law applicable to the Company, (ii) result in the breach of, or be in
conflict with, any term, covenant, condition or provision of, any
Contractual Obligation of the Company; or (iii) result in the creation or
imposition of any Encumbrances upon any assets of the
Company;
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(f)
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Financial
Statement. The audited balance sheet and income
statement of the Company as of June 30, 2007, to be procured and paid for
by the Company (the “Financial Statements”) shall be complete and accurate
and fairly present the assets and liabilities of the Company as of the
dates and for the period therein
specified;
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(g)
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Assets and
Business. The Company owns the tangible and intangible
assets listed in Schedule 2.02(g) (plus tangible assets acquired after the
date hereof and minus tangible assets disposed of in the ordinary course
of business after the date hereof) free and clear of all Encumbrances
except as set forth in Schedule 2.02(g), as such Schedule may be amended
to include Encumbrances attaching after the date hereof to tangible assets
acquired after the date hereof;
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(h)
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Absence of Undisclosed
Liabilities. Except as included in the Financial
Statements and except for liabilities which arise after the date of the
Financial Statements in the ordinary course of business, to the best of
the Xxxx Shareholders’ knowledge, the Company does not have any material
debt, liability, or obligation as of the Closing Date of any nature,
accrued, absolute or contingent, due or to become due, liquidated or
un-liquidated (each, “Undisclosed
Liability”). For purposes of this subsection 2.01(h), a
liability shall be deemed to be material if it exceeds 5% of the Company’s
assets as shown on the Financial
Statements;
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(i)
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Tax Returns and
Payments. All income tax returns, federal, state, local, foreign
and other, including, without limitation, all federal income tax returns
and reports for each fiscal year of the Company through the fiscal year
ended June 30, 2007, required to be filed by and/or on behalf of the
Company in respect of any income taxes (including without limitation all
foreign, federal, state, county and local income taxes) have been filed,
and the Company has paid all income taxes shown thereon as owing except
where the failure to file or to pay income taxes would not have a material
adverse affect on the financial condition of the Company. Three
are no deficiency assessments against the Company with respect to any
foreign, federal, state, local or other taxes. There are no
outstanding agreements or waivers extending the period of limitation
applicable for assessment or collection for any federal, state, local or
foreign tax, or for the filing of any tax return, in respect of the
Company for any period. Neither the federal tax returns nor any
state, county, local or foreign tax returns of the Company have in the
past been audited by the Internal Revenue Service or any other taxing
authority. The Xxxx Shareholders have heretofore made available
to ACUP copies of all federal, state, local and foreign tax returns or
reports of the Company filed prior to the C losing Date. The
Xxxx Shareholders best knowledge, all tax returns filed by or on behalf of
the Company are materially true, correct and complete. To the
best knowledge of the Xxxx Shareholders, all taxes that the Company is or
was required to withhold or collect (including, without limitation,
payroll taxes) have been duly withheld or collected and paid to the proper
Governmental Authority;
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(j)
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Contracts. Attached
hereto as Schedule 2.02(j) is a list of all written agreements and
contracts to which the Company is a party or by which it is bound (the
“Contracts”). The
Xxxx Shareholders has no reason to believe the Contracts are not valid,
legally binding and enforceable in accordance with their terms and are in
full force and effect. Copies of the Contracts have been
delivered to ACUP;
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(k)
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Litigation. Except
as set forth on Schedule 2.02(k), no claim, action, suit, or other
proceeding against the Company is pending or, to the knowledge of the Xxxx
Shareholders, is threatened before or by any court, administrative or
regulatory body, or other Governmental Authority. The Xxxx
Shareholders knows of no investigation of the Company by any
administrative agency of any federal, state or local
government. No judgment, order, writ, injunction, decree or
award issued by any Governmental Authority is applicable to the
Company;
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(l)
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Accounts, Powers of
Attorney. There are no persons holding a power of
attorney on behalf of the Company or otherwise holding the right to act as
an agent on behalf of the Company. Schedule 2.02(l) lists the
names and addresses of each bank or other financial institution in which
on the date hereof the Company has an account, deposit or safe-deposit
box, including the number of each such account, deposit and safe-deposit
box;
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(m)
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Insurance. Except
as set forth in Schedule 2.02(m), there are no insurance policies
maintained by or on behalf of the Company in effect on the Closing
Date;
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(n)
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No Subsidiaries or
Joint Ventures. The Company does not own, directly or
indirectly, beneficially or of record, or have any obligation to acquire,
any stock of, or other equity or ownership interest in, any
Person. The Company is not a party to or involved in any joint
venture;
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(o)
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Accounts
Receivable. Schedule 2.02(o) shall be completed by the
Company on the Closing date to include a complete and accurate list of all
accounts receivable of the Company as of the Closing
Date;
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(p)
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Minute
Books. All Stock books, Stock ledgers and minute books
of the Company have been made available to ACUP for
review;
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(q)
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Employees. The
Company has approximately no employees and except as set forth on Schedule
2.02(q), no employee benefit plans or pension plans (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974
(“ERISA”)
or any incentive, bonus, stock option, stock appreciation or parachute
program or any other type of employee compensation arrangement or program.
Neither the Company nor any employee benefit or pension plan previously
maintained by the Company has any unsatisfied liability or obligation to
any former employee of the Company or in connection with any employee
benefit or pension plan or any incentive, bonus, stock option, stock
appreciation or parachute program;
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(r)
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Toxic Wastes; Employee
Safety, etc.
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(i)
Definitions. For
purposes of this Agreement, the following capitalized terms
shall have the meanings set forth below:
a)
“Hazardous
Substances” shall mean any chemical, compound, material, mixture, living
organism or substance that is now or hereafter defined or listed in, or
otherwise classified or regulated in any way pursuant to, any Environmental Laws
as a “hazardous waste,” “hazardous substance,” “hazardous material,” “extremely
hazardous waste,” “infectious waste,” “toxic substance,” “toxic pollutant” or
any other formulation intended to define, list, or classify substances by reason
of deleterious properties, including without limitation, ignitability,
corrosivity, reactivity, carcinogenicity or toxicity, such materials to include
without limitation, oil, waste oil, petroleum waste petroleum, polychlorinated
biphenyls (PCBs), asbestos, radon, natural gas, natural gas liquids, liquefied
natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and
such synthetic gas);
b) “Environmental Laws” shall mean
applicable federal, state, or local laws, including without limitation, common
law, statutes, rules, regulations, codes or ordinances, requirements under
licenses, permits, franchises, approvals or contracts, orders, demands, decrees,
judgments, directives, injunctions and requirements of any other governmental
authority, relating to the protection of health, safety or the
environment;
(ii)
Neither the Shareholders of Xxxx nor the Company are in actual or alleged
violation of any Environmental Laws, arising from the Xxxx Shareholders or the
Company’s ownership, operation or use of any property prior to the Closing Date,
or arising from their ownership, operation or use of any of their other current
or former assets or businesses;
(iii)
To the Xxxx Shareholders’ knowledge, no property currently or formerly owned,
operated or used by the Company or any property to which the Company may have
transported, treated or disposed or arranged for the transport, treatment or
disposal of Hazardous Substances is listed as a site on the National Priorities
List (as defined in the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended) or comparable federal, state or local list of
sites of environmental concern. In addition, to the Xxxx
Shareholders’ knowledge, none of such sites are or have been the subject of any
remediation, removal, cleanup, investigation, response action, claim, judgment
or enforcement action regarding any actual or alleged presence of Hazardous
Substances;
(iv)
To the best knowledge of the Xxxx Shareholders, the Company has not received any
written notice or report of any releases of Hazardous Substances on, under, from
or into any property formerly owned, operated or used by the Company during the
time of its ownership, operation or use or, to the knowledge of the Seller,
prior to the Company’s ownership, operation or use.
(v)
To the best knowledge of the Xxxx Shareholders, there are no civil, criminal or
administrative actions, suits, demands, claims, hearings, proceedings or notices
pending or, threatened against the Company under any Environmental Laws,
including without limitation, those related to any allegations of economic loss,
personal injury, illness or damage to real or personal property or the
environment. To the Xxxx Shareholders knowledge, there are no facts or
circumstances which are reasonably likely to give rise to such a
claim.
(vi)
The Company is not a party or a successor in interest to any contract or
agreement, including without limitation, any purchase agreements, leases,
indemnities or guaranties, pursuant to which the Company has assumed or agreed
to be responsible for any current or contingent liabilities with respect to any
Hazardous Substances or any matters under Environmental Laws.
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(s)
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Permits,
Licenses, Etc. No franchise, license, permit, certificate,
authorization,right or other approval issued or granted by any
Governmental Authority to or for thebenefit of the Company is in existence
or effect, except for the Company’s incorporation in
California;
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(t)
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Officers,
Directors. Schedule 2.02(s) contains a complete and correct list of all
ofthe officers and directors of the
Company.
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ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES OF THE ACUP
Section
3.01 Representations of ACUP. ACUP hereby represents and
warrants to the Xxxx Shareholders as follows:
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(a)
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Existence. ACUP
is a corporation duly organized and validly existing under the laws of the
State of Nevada;
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(b)
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Authorization; No
Violation. The execution, delivery and performance by ACUP of this
Agreement are within the corporate powers of ACUP and have been duly
authorized by all necessary action, and do not contravene in any material
respect any Requirement of Law or Contractual Obligation of
ACUP;
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(c)
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Government
Authorization. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority is
required to be obtained or made by the ACUP for the due execution,
delivery and performance by the ACUP of this
Agreement;
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(d)
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Enforceable
Obligations. This Agreement has been duly executed and
delivered on behalf of the ACUP and constitute the legal, valid and
binding obligations of the ACUP enforceable against the ACUP in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity;
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(e)
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No
Litigation. No claim, action, suit, investigation or
other proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of the ACUP, threatened by or against the
ACUP with respect to this Agreement or any of the transactions
contemplated hereby;
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(f)
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Brokers,
Finders. ACUP has not retained any person to act on its
behalf as a broker or finder in connection with the purchase of the
Shares;
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(g)
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Investment
Intent. The Shares are being acquired by the ACUP for
its own account and not with a view to distribution within the meaning of
the Securities Act of 1933, as amended (the “Securities
Act”). ACUP acknowledges that there is no existing public
market for the Shares and that no registration statement relating to the
Shares has been filed under the Securities Act or any applicable state
securities laws, and that the Shares must be held by it for an indefinite
period of time unless the Shares are subsequently registered under the
Securities Act and state securities laws or unless an exemption from any
such applicable registration requirement is available, and ACUP
acknowledges that there is no assurance or obligation as to any such
registration or exemption;
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(h)
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SEC
Filings. Prior to the Closing, ACUP intends to file with
the Securities and Exchange Commission all reports on Form 10-KSB, Form
10-QSB, Form 8-K and all other reports required to be filed with the
Securities and Exchange Commission. All officers and directors
intend to file with the Securities and Exchange Commission all reports
required to be filed by them in relation to their ownership of securities
of ACUP. All such reports are or will be accurate and true in
every material respect and none of such reports makes any untrue statement
of a material fact or omits 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;
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(i)
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No Adverse
Changes. Since June 30, 2007, the date of ACUP’s most
recent fiscal year end, and there had been no material adverse changes in
the companies in business, products, finances, markets, workforce e, or
business prospects. ACUP has no reason to the expected the
unforeseeable events will have an adverse impact on ACUP or the market
price of the shares of common stock of
ACUP.
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ARTICLE
IV.
CONDITIONS
TO CLOSING
Section
4.01 Conditions
to ACUP’s Obligations. The obligation of the ACUP to exchange
the Common Stock for the Shares at the Closing is subject to the fulfillment on
or prior to the Closing Date of the following conditions:
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(a)
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Representations
and Warranties Correct; Performance of Obligations. Therepresentations and
warranties made by the Xxxx Shareholders in ArticleII hereof shall be true
and correct in all material respects when made, and shall be true and
correct in all material respects on the Closing Date with the same force
and effect as if they had been made on and as of the Closing Date. Xxxx
Shareholders shall have performed in all material respects all obligations
and conditions herein required to be performed or served by them on or
prior to the Closing Date;
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(b)
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Qualifications. All
actions and steps necessary to assure compliance withapplicable
federal and state securities laws shall have been duly obtainedand shall
be effective on and as of the Closing, except for such filings xxxxx
required or permitted by state or federal securities laws subsequent to
the Closing;
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(c)
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Dividends. The
Company shall not have declared or paid any dividend orotherwise changed
its capitalization between the date hereof and the Closing
Date;
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(d)
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Audited Financial
Statements. ACUP shall have received and approved the
Financial Statements. ACUP agrees that it is the ACUP’s sole
obligation to pay for such audit and that neither the Xxxx Shareholders
nor the Company shall have any liability for such
expense.
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(e)
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Resignation of
Officers and Directors. ACUP shall have received the
written resignations of the officers and directors of the Company
effective upon the Closing;
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(f)
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Lock-Up
Agreement. ACUP shall have received a Lock-Up agreement
signed by the Xxxx Shareholders in a form acceptable to
ACUP and the Xxxx
Shareholders;
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(g)
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ACUP; Name
Change. ACUP shall have changed its name to “Xxxx
Nutrition” prior to Closing.
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Section
4.02 Conditions
to Obligations of the Xxxx Shareholders. The Xxxx
Shareholders’ obligation to sell the Shares at the Closing is subject to the
fulfillment on or prior to the Closing Date of the following
conditions:
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(a)
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Representations and
Warranties Correct; Performance of Obligations. The
representations and warranties of the ACUP in Article III hereof shall be
true and correct in all material respects when made, and shall be true and
correct in all material respects on the Closing Date with the same force
and effect as if they had been made on and as of the Closing Date, and the
ACUP shall have performed in all material respects all obligations
and conditions herein required to be performed by it on
or prior to the Closing Date;
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(b)
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Incumbency Certificate
of ACUP. The Xxxx Shareholders shall have received a
certificate of the Secretary of ACUP, certifying the names and signatures
of officers of ACUP authorized to sign this Agreement and the other
documents to be delivered hereunder on behalf of
ACUP;
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(c)
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Audited Financial
Statements. Xxxx Shareholders shall have received and
approved the Financial Statements;
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(d)
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ACUP; Name
Change. ACUP shall have changed its name to “Xxxx
Nutrition” prior to Closing.
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(e)
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Resignation of Xxxxxx
Xxxxxx (“DV”) and Election of new Officers and
Directors. Effective on the Closing, DV shall have (i)
elected the three (3) designees of the Xxxx Shareholders as the new
officers and directors of ACUP and (ii) thereafter DV will resign as an
officer and director of ACUP, effective at the close of business on the
Closing Date.
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ARTICLE
V.
CLOSING
DELIVERIES
Section
5.01 The Xxxx
Shareholders Deliveries. At the Closing, in addition to any
other documents or agreements required under this Agreement, the Xxxx
Shareholders shall deliver or cause to be delivered to the ACUP the
following:
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(a)
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Stock
certificates evidencing the Shares duly endorsed in blank, or accompanied
by stock powers duly executed in blank, in a form reasonably satisfactory
to the ACUP;.
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(b)
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All
records, documents and files of the Company including, without limitation,
all minute books, stock records and internal accounting records, including
the approval of the managers of the Xxxx Shareholders of this Agreement
and the transactions contemplated by this
Agreements;
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(c)
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Lock-Up
agreement signed by the Xxxx Shareholders in a form acceptableto the Xxxx
Shareholders and ACUP;
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Section
5.02 ACUP’s
Deliveries. At the Closing, in addition to any other documents
or agreements required under this Agreement, the ACUP shall deliver to the Xxxx
Shareholders (i) the resignation of DV and (ii) the ACUP Common Stock
certificates in accordance with the instructions of Xxxx Shareholders, together
with such other documents as reasonably may be required by the Xxxx Shareholders
to consummate this Agreement.
ARTICLE
VI.
SURVIVAL
OF REPRESENTATIONS; INDEMNIFICATION
Section
6.01 Survival of Representations. The parties agree that,
notwithstanding any right or ability of the ACUP fully to investigate the
affairs of the Company, any knowledge of facts determinable by the ACUP pursuant
to such investigations or right of or ability to investigate, the ACUP has the
right to rely fully upon the representations, warranties, covenants and
agreements of the Xxxx Shareholders contained in this Agreement and on the
accuracy of any schedule, exhibit, document or certificate annexed
hereto. All representations and warranties of the parties contained
herein shall survive the Closing until the expiration of the time periods set
forth in Section 6.04.
Section
6.02 Indemnification
by the Xxxx Shareholders. (a)Subject to the provisions
of this Article VI, the Xxxx Shareholders shallindemnify and hold harmless the
Company, ACUP and their affiliates andthe officers, partners, directors,
employees, agents, owners, successors and assigns thereof from any loss, damage,
liability or expense, including, without limitation, reasonable expenses of
investigation and reasonable attorneys’ fees and expenses incurred in connection
with any action, suit or proceeding against any thereof (“Adverse Consequence”)
incurred or suffered by such party and arising out of or resulting from (i) any
material breach of any representation or warranty contained in Article II of
this Agreement (provided, however, that the Seller shall not be deemed to have
breached the provisions of Section 2.01(g) unless the Seller is also liable to
the Purchaser under Section 10b-5 of the Securities Exchange Act of 1934 or
Section 12(2) of the Securities Act of 1933), (ii) any material breach of any
covenant made by the Xxxx Shareholders hereunder, or (iii) any lawsuit or other
proceeding or claim brought by any third party after the Closing against the
Company, ACUP, or any of their respective officers, partners, directors,
employees, agents, owners, successors and assigns with respect to any acts or
omissions of the Company prior to the Closing For purposes of this
Section 6.02(a), the term “material” means a breach which would have a material
adverse effect on the Company’s business, taken as a whole. Notwithstanding any
other provision to the contrary, the Xxxx Shareholders’ liability under this
Agreement for any breach of this Agreement shall not exceed the consideration
paid;
(b)
Anything to the contrary contained herein notwithstanding, in the event of
liability of the Xxxx Shareholders to ACUP under this Article VI, the Xxxx
Shareholders may discharge such liability by transferring to ACUP the Common
Stock which shall be deemed to have a value per share equal to the average
public trading price of ACUP’s common stock during the 20 trading days prior to
such transfer, but not less than $0.10 per share.
Section
6.03 Indemnification
by ACUP. Subject to the provisions of this Article VI, ACUP
shall indemnify and hold harmless the Xxxx Shareholders and their affiliates and
officers, partners, directors, employees, agents, owners, successors and assigns
thereof from any loss, damage, liability or expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys’ fees
and expenses) incurred in connection with any action, suit or proceeding against
any thereof (“Adverse Consequence”), incurred or suffered by such party and
arising out of or resulting from (i) any material breach of any representation,
warranty, or covenant contained in Article III of this Agreement, (ii) any
material breach of any covenant made by ACUP hereunder, or (iii) any lawsuit or
other proceeding or claim brought b y any third party after the Closing against
the Xxxx Shareholders, or any of their respective officers, partners, directors,
employees, agents, owners, successors and assigns with respect to any acts or
omissions of the Company prior to the Closing. For purposes of this
Section 6.03, the term “material” means a breach which would have a material
adverse effect on the ACUP business, taken as a
whole. Notwithstanding any other provisions to the contrary, ACUP’s
liability under this Agreement for any breach of this Agreement shall not exceed
the consideration paid.
Section
6.04 Time
Periods. The indemnification obligations under this Article VI
shall continue for the periods specified below and shall terminate with the
expiration of such respective periods:
(a)
as to representations and warranties set forth in Section 2.01(f), such
representations and warranties shall survive the Closing
indefinitely;
(b)
as to representations and warranties set forth in Section 2.02(i), until the
lapse of the statute of limitations applicable to the matters described
therein;
(c)
as to all other representations and warranties and breaches of any other
covenant or undertaking, for two (2) years after the Closing Date.
Any claim
or demand against the Xxxx Shareholders or ACUP of which notice has been given
pursuant to Section 6.06 at or prior to the expiration of the related period
shall continue to be subject to indemnification hereunder notwithstanding the
expiration of such period.
Section
6.05 Notice
Claim. ACUP, on the one hand, and the Xxxx Shareholders, on
the other hand, shall promptly notify the other of any claim, suit or demand of
which the notifying party has actual knowledge which entitles it to
indemnification under this Article VI, provided, however, that the
delay or failure of any party required to provide such notification shall not
affect the liability of the indemnifying party hereunder except to the extent
the indemnifying party is harmed by such delay or failure.
Section
6.06 Defense. If
the liability or claim for which indemnification under this Article VI is sought
is asserted by a third party, the indemnifying party shall have, at its
election, the right to defend any such matter at its sole cost and expense
through counsel chosen by it and reasonably acceptable to the indemnified party
(provided that the indemnifying party shall have no such right if it is
contesting its liability under this Article VI). If the indemnifying
party so undertakes to defend, the indemnifying party shall promptly notify the
indemnified party hereto of its intention to do so. The indemnifying
party shall not, without the indemnified party’s written consent, settle or
compromise any claim or consent to an entry of judgment which does not include
as an unconditional term thereof a release of the indemnified
party.
Section
6.07
Cooperation
and Conflicts. Each party agrees in all cases to cooperate
with the indemnifying party and its counsel in the defense of any such
liabilities or claims. The indemnifying party and the indemnified
party or parties may be represented by the same counsel unless such
representation would be inappropriate due to conflicts of interest between
them. In addition, the indemnified party or parties shall at all
times be entitled to monitor and participate in such defense through the
appointment of counsel of its or their own choosing, at its or their own cost
and expense.
ARTICLE
VII.
MISCELLANEOUS
Section
7.01 Waiver. Any
extension or waiver with respect to any agreement or condition contained herein
or the breach thereof shall be valid only if set forth in a separate instrument
in writing signed by the party to be bound thereby. Any waiver of any
term or condition shall not be construed as a waiver of any subsequent breach or
a subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Agreement. The failure of any party to assert
any of its rights hereunder shall not constitute a waiver of any such
rights.
Section
7.02 Further
Assurances. The Xxxx Shareholders agrees, without further consideration,
to execute and deliver following the Closing such other instruments of transfer
and take such other action as the ACUP may reasonably request in order to put
the ACUP in possession of, and to vest in the ACUP, good and valid title to the
Shares free and clear of any Encumbrances in accordance with this Agreement and
to otherwise consummate the transactions contemplated by this
Agreement.
Section
7.03 Entire
Agreement; Amendment. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement among the parties hereto with regard to the subject matter hereof and
thereof and supersede all prior and contemporaneous agreements and
understandings, oral or written, among the parties hereto with respect to such
subject matter. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived only with the written
consent of the parties hereto.
Section
7.04 Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any law, rule or regulation or public policy, all other
terms and provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
Section
7.05 Notices,
etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered personally,
mailed by first-class mail, postage prepaid, or sent by reputable overnight
courier service addressed (a) if to ACUP, at ACUP’s address set forth on Section
1.02 hereto or at such other address as such as ACUP shall have furnished to the
Xxxx Shareholders by 10 days’ notice in writing, with a copy to (b) if to the
Xxxx Shareholders, at the addresses set forth on Exhibit B hereto, or such
other address as the Xxxx Shareholders shall have furnished to ACUP by 10 days’
notice in writing.
Section
7.06 Expenses. All
costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with the
negotiation, preparation, execution and delivery of this Agreement and
consummation of the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses; however, the Company shall pay, at the
Closing, the legal fees and disbursements of legal counsel to the Sellers and
the Purchaser shall pay for the Financial Statements of the
Company.
Section
7.07 Governing
Law; Jurisdiction. This Agreement shall be governed in all
respects by the laws of the State of California without application of
principles of conflicts of laws. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
may be brought against any of the parties in any state or federal court located
in the State of California, County of Los Angeles, and each of the parties
consents to the jurisdiction of such courts in any such action or proceeding and
waives any objection to venue laid therein. Process in any action or
proceeding referred to in the preceding sentence may be served on any party
anywhere in the world.
Section
7.08 Benefit
of Agreement; Assignment. This Agreement will apply to, be
binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the parties. This Agreement may not be assigned
by operation of law or otherwise by Xxxx Shareholders without the express
written consent of the ACUP (which consent may be granted or withheld in the
sole discretion of ACUP).
Section
7.10 Titles
and Subtitles. The titles of the Sections of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement.
Section
7.11 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.
Section
7.12 Representation
Disclaimer. The Xxxx Shareholders shall not be deemed to have
made to ACUP any representation or warranty other than as expressly made by the
Xxxx Shareholders in Article II hereof. Without limiting the
generality of the foregoing, and notwithstanding any otherwise express
representations and warranties made by the Xxxx Shareholders in Article II
hereof, the Xxxx Shareholders makes no representation or warranty to ACUP with
respect to:
(a) any projections, estimates or
budgets heretofore delivered to or made available to Purchaser of future
revenues, expenses or expenditures or future results of operations;
or
(b) except as expressly covered by a
representation and warranty contained in Article II hereof, any other
information or documents (financial or otherwise) made available to ACUP or its
counsel, accountants or advisers with respect to the Company.
Section
7.13 ACUP’s
Due Diligence Investigation. ACUP has had over 10 days (such
period, “ACUP’s Due Diligence Period”) in which to conduct its confirmatory due
diligence. During such ACUP’s Due Diligence Period, ACUP and its
accountants, consultants, and advisers have been permitted to review the
premises, facilities, books and records and contracts of the Company, and to
conduct interviews with the Company’s senior management regarding the business,
operations, financial condition and results of operations of the Company, for
the purpose of confirming the accuracy of the representations and warranties of
the Xxxx Shareholders contained herein. ACUP has the right, at any
time during ACUP’s Due Diligence Period, at ACUP’s sole discretion and without
any liability or obligation, to terminate all negotiations with the Xxxx
Shareholders, except for the ACUP’s obligation to pay for an audit of the
Company.
Section
7.14 The Xxxx
Shareholders’ Due Diligence Investigation. The Xxxx
Shareholders have had over 10 days (such period, “The Xxxx Shareholders’ Due
Diligence Period”) in which to conduct its confirmatory due
diligence. During such Xxxx Shareholders’ due diligence period, the
Xxxx Shareholders and their accountants, consultants, and advisers were
permitted to review the premises, facilities, books and records and contracts of
the ACUP, and to conduct interviews with the ACUP’s senior management regarding
the business, operations, financial condition and results of operations of the
Company, for the purpose of confirming the accuracy of the representations and
warranties of ACUP contained herein. The Xxxx Shareholders had the
right, at any time during the Xxxx Shareholders’ Due Diligence Period, at the
Xxxx Shareholders’ sole discretion and without any liability or obligation, to
terminate all negotiations with the ACUP.
Section
7.15 Press
Releases and Public Announcements. No party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of ACUP
and the Xxxx Shareholders; provided, however, that any party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing party will use its efforts to advise the other parties prior
to making the disclosure).
Section
7.16 Holding Period. ACUP agrees that, for purposes of
Securities and Exchange Commission Rule 144, the holding period with respect to
all shares of ACUP common stock delivered to the Xxxx Shareholders under this
Agreement, commences on the date of the Closing and that upon the expiration of
one year thereafter (or any shorter period included in any amendment to Section
(d) of rule 144), upon compliance with the other requirements of Rule 144, as
amended, such shares may be publicly sold. Upon the expiration of two
years after the Closing (or any shorter period included in any amendment to
Section (k) of Rule 144, ACUP shall remove all restrictive legends from
certificates evidencing shares of common stock issued upon the conversion
thereof.
IN WITNESS WEHREOF, the parties have
executed this Agreement as of the day and year set forth in the heading
hereof.
|
AccuPoll
Holding Corp.
|
Xxxx
Partners, Ltd.
|
|
By:
____________________________
|
By:
__________________________
|
|
Xxxxxx
Xxxxxx
|
Xxxxxx
X. Xxxxxxxxx
|
|
Xxxx
Beverage, Inc.
|
|
|
By:
__________________________
|
|
|
Xxxxxx
X. Xxxxxxxxx
|
EXHIBIT
A
ADDRESSES
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.01(f)
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.0(g)
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.01 (h)
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.02(h)
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.02(k)
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.02(i)
[TO BE
ADDED PROR TO CLOSING]
SCHEDULE
2.02 (m)
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.02 (n)
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.02(p)
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.02(r)
[TO BE
ADDED PRIOR TO CLOSING]
SCHEDULE
2.02(u)
[TO BE
ADDED PRIOR TO CLOSING]
