Exhibit 1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (hereinafter referred to as the "Agreement"), is
made effective as of the 23'rd day of September, 2002, by and among RHOMBIC
CORPORATION, a Nevada corporation (hereinafter referred to as "NUKE"), having
its principal address at 00000 Xxxxx Xxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000, and NEXT ADVISORS, INC., a Delaware corporation (hereinafter referred to
as "NAI"), having its principal address at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxx
Xxxx, Xxxxxxxxxx 00000 and hereinafter referred to collectively as "THE
PARTIES".
RECITALS
WHEREAS, NUKE is desirous of purchasing, in a tax-free exchange, as defined by
the United States Internal Revenue Code, all of the issued and outstanding
shares of the Common Stock of NAI in exchange for one hundred and twenty million
(120,000,000) shares of NUKE'S Common Stock, and;
WHEREAS, In consideration of the terms and conditions of the Binding Letter of
Intent by and between NUKE and NAI, executed on August 30, 2002 and subsequently
affirmed by the respective boards of directors of both companies, and the
subsequent receipt of a draft audit of NAI and a valuation of NAI showing a
value for NAI in excess of the value required under the Letter of Intent, in
satisfaction of the clauses of that Letter of Intent requiring those items;
NOW, THEREFORE, in consideration of the following mutual promises, payments,
exchanges, credits, covenants, restrictions, agreements and other valuable
considerations, the receipt and sufficiency of which shall be acknowledged by
each party upon execution hereof, the parties, with full intent to be legally
bound hereby, agree as follows:
SECTION 1. CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
1.01 CLOSING. Subject to the provisions of this Agreement, the closing (the
"Closing") of the transactions contemplated by this Agreement shall take place
at the offices of Next Advisors, Inc. 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxx
Xxxx, XX 00000 effective September 23, 2002, or at such other time and date as
the parties hereto may mutually agree. Provided, however, that if a condition to
Closing shall not have been fulfilled or waived at such time, any party hereto
entitled to the benefits of such condition may postpone the Closing by notice to
the other parties until such condition or conditions shall have been met or
waived, except that in no event shall the Closing occur after September 23, 2002
without the written agreement of all parties hereto.
1.02 EXCHANGE OF CAPITAL STOCK.
(a) Conversion of Existing Series of NAI Stock. Effective immediately upon
Closing, any and all outstanding shares of Series B Common Stock of
NAI and all existing shares of NAI preferred stock Series A and B,
shall be converted to Series A Common Stock of NAI.
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(b) EXCHANGE OF SERIES A COMMON STOCK OF NAI BY XXXX XXXXXXX. At the
Closing, in exchange for thirty seven million shares of NUKE Common
Stock, Xxxx Xxxxxxx shall deliver three million five hundred seventy
four thousand nine hundred nineteen (3,574,919) shares of Series A
Common Stock of NAI representing ownership of thirty-one percent (31%)
of the issued and outstanding equity of NAI. The exact number of
shares to be delivered are attached and incorporated herein as
Schedule 1.02 (a) to this Agreement.
(c) SPECIAL SHAREHOLDERS MEETING OF NUKE. Immediately following the
Closing of this transaction, the directors of NUKE shall call a
special shareholder's meeting. This meeting shall be held in
accordance with all Federal, State and Local securities laws and
regulations. The shareholders' shall vote upon the following issues
and any other the Board of Directors may choose to put before them.
The items voted on, and agreed to, by a majority of the shareholders
present and entitled to vote upon them shall become effective upon
whatever date that the shareholders specify by their affirmative vote.
(i) An increase in the authorized shares of the company, such that at
a minimum it will allow for an increase sufficient to allow for
the issuance of the shares purchased under this agreement, the
specific number and classes of which to be determined by the
Board of Directors of NUKE prior to the Special Shareholders
Meeting.
(ii) The issuance of 83,000,000 shares of NUKE Common stock in
exchange for all of the remaining shares of NAI Series A Common
Stock as of the effective date of the vote of the shareholders of
NUKE.
(d) Exchange of Remaining Shares of NAI. Subject to an affirmative vote by
a majority of the shareholders present and entitled to vote at the
Special Shareholders Meeting as per Section 1.02.c above, and upon the
effective date of that vote, the holders of the remaining 69% of all
issued and outstanding shares of NAI Series A Common Stock shall
exchange those shares for 83,000,000 shares of NUKE Common Stock, such
that NUKE shall own one hundred percent (100%) of the issued and
outstanding equity of NAI.
(e) CONVERSION OF NAI WARRANTS. At the Closing, all then outstanding
warrants to purchase NAI Stock (the "NAI Warrants") will be converted
to one warrant to purchase one share of NUKE'S Common Stock per share
per NAI Warrant held of record as of the Closing Date. These warrants
shall have an exercise price of $0.10 per share. In accordance with
this section, NUKE shall issue 393,267 warrants to purchase 393,267
shares of NUKE Common Stock to the holders of NAI Warrants. These
warrants shall expire on December 31, 2002
(f) CANCELLATION OF NAI OPTIONS. At the Closing, each then outstanding
option to purchase shares of NAI Common Stock ("NAI Options") which is
unexercised, whether vested or unvested, shall be canceled.
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SECTION 2. REPRESENTATIONS AND WARRANTIES OF NAI. NAI represents and warrants to
NUKE as follows:
2.01 ORGANIZATION, STANDING AND POWER; QUALIFICATION. NAI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; has all requisite corporate power to own, lease and operate its
properties and to carry on its business as currently being conducted and as
currently proposed to be conducted; is duly qualified to do business and is in
good standing in each jurisdiction in which the failure to be so qualified and
in good standing would have a material adverse effect on its business, assets
(including intangible assets), properties, liabilities (contingent or
otherwise), financial condition, operations, or results of operation (a
"Material Adverse Effect") of NAI.
2.02 NAI CAPITAL STRUCTURE. The authorized capital stock of NAI as of September
19, 2002 consists of:
(a) 70,000,000 shares of NAI Series A & B Common Stock, of which 9,439,500
Series A shares are issued and outstanding and 406,000 Series B shares
are issued and outstanding and;
(b) 30,000,000 shares of NAI Preferred Stock, of which:
(i) 1,000,000 shares are designated as Series A Preferred Stock, of
which 873,200 shares are issued and none are outstanding;
(ii) 6,000,000 shares are designated as Series B Preferred Stock, of
which 813,297 shares are issued and outstanding;
(iii) 393,267 warrants to purchase NAI Series B Preferred Stock and;
(iv) 2,952,046 options to purchase NAI Series B Preferred Stock.
(c) Prior to Closing, all of the outstanding shares of all Series B Common
and Series A and B Preferred Stock will be converted to Series A
Common Stock. All outstanding shares of NAI Common Stock and NAI
Preferred Stock have been duly authorized and validly issued, are
fully paid and nonassessable, were issued in compliance with state and
federal securities laws, and are subject to no preemptive rights or
rights of first refusal created by statute, the Articles of
Incorporation or Bylaws of NAI or any agreement to which NAI is a
party or by which it is bound.
2.03 NO CONFLICTS. Neither the execution and delivery of this Agreement by NAI,
the performance by NAI of its obligations hereunder, the execution and delivery
by NAI of any agreement required to be entered into pursuant to this Agreement,
nor the consummation of the transactions contemplated hereby, will result in any
of the following: (a) a default or an event that, with notice or lapse of time,
or both, would constitute a default, breach or violation of (i) any provision of
the Articles of Incorporation or Bylaws of NAI, or (ii) any of the terms,
conditions or provisions of any lease, license, franchise, promissory note,
contract, agreement, commitment, indenture, mortgage, deed of trust, or other
instrument, document or arrangement to which NAI is a party or by which it or
any of its respective properties or assets may be bound and which is material to
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NAI (a "Material Contract"); (b) the creation or imposition of any Lien on any
of the assets or properties of NAI; (c) the termination of any Material Contract
or the acceleration of the maturity of any indebtedness or other material
obligation of NAI; (d) a violation or breach of any order, writ, injunction,
decree, law, statute or regulation of any court or governmental authority
applicable to NAI or any of its respective properties or assets; or (e) the
cessation or termination of any other business relationship or arrangement
between NAI and any third party the cessation or termination of which would have
a Material Adverse Effect.
2.04 NO CONSENT. No consent, approval, order or authorization of, or
registration, declaration or filing with, any person or entity or any court,
administrative agency or commission or other governmental authority or
instrumentality is required by or with respect to NAI in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
2.05 LEASES AND RENTAL AGREEMENTS. The only leases or rental agreements to which
NAI is or is deemed to be a party are described in Schedule 2.05 which also
describes, in general, terms and conditions of such leases or rental agreements.
2.06 FINANCIAL INFORMATION. NAI have furnished, or will furnish within ten days
of Closing of this transaction unaudited financial information of NAI and its
subsidiaries through the latest reported quarter of NUKE, such as June 30, 2002
or September 30, 2002, sufficient for NUKE auditors to review and attach as an
exhibit to a Form 8-K which NUKE will be obligated to file within 15 days of
Closing and that within 75 days of Closing audited financial information of NAI
will be required to be filed by NUKE as an exhibit to an amendment to the Form
8-K. All the financial information to be furnished by NAI shall be complete,
accurate and shall omit no information which would be required to accurately
describe results of operations and financial condition of NAI for the last two
fiscal years.
2.07 TAXES. Any property, real estate, income, payroll or other taxes which have
been assessed against NAI or its assets or subsidiaries have been paid in full
through the date of the last required payment, and NAI has disclosed to NUKE all
of such taxes applicable.
2.08 INSURANCE. NAI has disclosed to NUKE all insurance coverage covering the
business affairs, assets, liabilities or other obligations; completion of the
transaction contemplated by this Agreement shall not adversely affect the
existence or coverage of such insurance.
2.09 LICENSES AND PERMITS; COMPLIANCE WITH LAWS. Each of the material licenses
and permits necessary for the operation of NAI'S business is in full force and
effect, and there are no pending or, to the knowledge of NAI, threatened claims
or proceedings challenging the validity of, or seeking to revoke or discontinue,
any of the material licenses and permits. None of the transactions contemplated
by this Agreement will affect the validity of or cause the revocation or
discontinuation of any of the material licenses and permits.
2.10 LITIGATION. Except as set forth in Schedule 2.06 attached hereto, There is
no pending, or, to the best knowledge of NAI any threatened, action, suit,
arbitration proceeding, charge, complaint, allegation, investigation, inquiry or
other proceeding or claim before any court or governmental or administrative
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body or agency or other entity against, relating to or affecting NAI or any
director, shareholder, officer, agent or employee of NAI in its, his or her
capacity as such, or the assets, properties or business of NAI or the
transactions contemplated by this Agreement, nor is NAI aware of any facts or
circumstances which could reasonably lead to or provide the basis for any such
action, suit, arbitration proceeding, investigation or inquiry that, if brought
or adversely determined against NAI could reasonably be expected to have a
Material Adverse Effect
2.11 DISCLOSURE. None of the representations or warranties of NAI contained in
this Agreement or any documents delivered in connection with the transactions
contemplated hereby, or in any certificate furnished or to be furnished pursuant
hereto, contains any statement of a material fact that was untrue when made or
omits to state any material fact necessary to make the statements of fact
contained herein or therein not misleading in any material respect.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF NUKE. NUKE hereby represents and
warrants to the NAI as follows:
3.01 ORGANIZATION, STANDING AND POWER; QUALIFICATION. NUKE is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada; has all requisite corporate power to own, lease and operate its
properties and to carry on its business as currently being conducted and as
currently proposed to be conducted; is duly qualified to do business and is in
good standing in each jurisdiction in which the failure to be so qualified and
in good standing would have a material adverse effect on its business, assets
(including intangible assets), properties, liabilities (contingent or
otherwise), financial condition, operations, or results of operation (a
"Material Adverse Effect") of NUKE.
3.02 NUKE CAPITAL STRUCTURE.
(a) The authorized capital stock of NUKE consists of 70,000,000 shares of
NUKE Common Stock, $0.01 par value, of which, NUKE may issue up to
20,000,000 shares as Preferred Stock, $0.01 par value in such classes
and with such rights as the board of directors may determine. As of
September 19, 2002 there were:
(i) 30,000,000 shares of NUKE Common Stock, issued and outstanding,
all of which are duly authorized, validly issued, fully paid and
nonassessable;
(ii) no shares of NUKE Common Stock held in the treasury of NUKE or
by Subsidiaries of NUKE;
(iii) approximately 500,000 shares of NUKE Common Stock, reserved for
future issuance pursuant to stock options granted and
outstanding, all expiring prior to January 1, 2003, and;
(iv) as of the date of this Agreement, none of the shares of NUKE
Preferred Stock are issued and outstanding.
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(b) Except as set forth in Section 3.02(a), there are
(i) no equity securities of any class of NUKE, or any security
exchangeable into or exercisable for such equity securities,
issued, reserved for issuance or outstanding and;
(ii) no options, warrants, equity securities, calls, rights,
commitments or agreements of any character to which NUKE is a
party or by which it is bound obligating NUKE to issue, deliver
or sell, or cause to be issued, delivered or sold, additional
shares of capital stock of NUKE or obligating NUKE to grant,
extend, accelerate the vesting of or enter into any such option,
warrant, equity security, call, right, commitment or agreement
and:
(iii) to the knowledge of NUKE, there are no voting trusts, proxies or
other agreements or understandings with respect to the shares of
capital stock of NUKE.
3.03 NO CONFLICTS. Neither the execution and delivery of this Agreement by NUKE,
the performance by NUKE of its obligations hereunder, the execution and delivery
by NUKE of any agreement required to be entered into pursuant to this Agreement,
nor the consummation of the transactions contemplated hereby, will result in any
of the following: (a) a default or an event that, with notice or lapse of time,
or both, would constitute a default, breach or violation of (i) any provision of
the Articles of Incorporation or Bylaws of NUKE, or (ii) any of the terms,
conditions or provisions of any lease, license, franchise, promissory note,
contract, agreement, commitment, indenture, mortgage, deed of trust, or other
instrument, document or arrangement to which NUKE is a party or by which it or
any of its respective properties or assets may be bound and which is material to
NUKE (a "Material Contract"); (b) the creation or imposition of any Lien on any
of the assets or properties of NUKE; (c) the termination of any Material
Contract or the acceleration of the maturity of any indebtedness or other
material obligation of NUKE; (d) a violation or breach of any order, writ,
injunction, decree, law, statute or regulation of any court or governmental
authority applicable to NUKE or any of its respective properties or assets; or
(e) the cessation or termination of any other business relationship or
arrangement between NUKE and any third party the cessation or termination of
which would have a Material Adverse Effect.
3.04 NO CONSENT. No consent, approval, order or authorization of, or
registration, declaration or filing with, any person or entity or any court,
administrative agency or commission or other governmental authority or
instrumentality is required by or with respect to NUKE in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
3.05 PUBLIC REPORTING ENTITY. NUKE is, and has been since 2000, a public
reporting corporation which files annual reports an Form 10-KSB, quarterly
reports on Form 10-QSB and current reports on Form 8-K under the Securities and
Exchange Act of 1934, as amended. All such reports have been timely filed
through the date hereof. NUKE has delivered or made available its most recent
Quarterly Report on Form 10-QSB for the quarter ended June 30, 2002 and the
Annual Report on Form 10-KSB for the fiscal year of NUKE ended December 31,
2001. The information in the financial statements, including the capitalization
of NUKE, included in such reports is complete, accurate and in compliance with
applicable regulations.
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3.06 AUTHORIZATION OF SHARES. Nuke is authorized to issue the Shares as
described in Section 1. The Shares shall be "restricted securities" as such term
is defined in Rule 144 adopted under the Securities Act of 1933, as amended, and
may not be sold, conveyed, transferred or hypothecated by any of the
shareholders of NAI until and unless the Shares are registered under the Act or
the sale or transfer would be exempt from registration requirements of the Act
in the reasonable determination of NUKE.
3.07 LICENSES AND PERMITS; COMPLIANCE WITH LAWS. Each of the material licenses
and permits necessary for the operation of NUKE'S business is in full force and
effect, and there are no pending or, to the knowledge of NUKE, threatened claims
or proceedings challenging the validity of, or seeking to revoke or discontinue,
any of the material licenses and permits. None of the transactions contemplated
by this Agreement will affect the validity of or cause the revocation or
discontinuation of any of the material licenses and permits.
3.08 LITIGATION. Except as set forth in Schedule 3.06 attached hereto, There is
no pending, or, to the best knowledge of NUKE any threatened, action, suit,
arbitration proceeding, charge, complaint, allegation, investigation, inquiry or
other proceeding or claim before any court or governmental or administrative
body or agency or other entity against, relating to or affecting NUKE or any
director, shareholder, officer, agent or employee of NUKE in its, his or her
capacity as such, or the assets, properties or business of NUKE or the
transactions contemplated by this Agreement, nor is NUKE aware of any facts or
circumstances which could reasonably lead to or provide the basis for any such
action, suit, arbitration proceeding, investigation or inquiry that, if brought
or adversely determined against NUKE could reasonably be expected to have a
Material Adverse Effect.
3.09 DISCLOSURE. None of the representations or warranties of NUKE contained in
this Agreement or any documents delivered in connection with the transactions
contemplated hereby, or in any certificate furnished or to be furnished pursuant
hereto, contains any statement of a material fact that was untrue when made or
omits to state any material fact necessary to make the statements of fact
contained herein or therein not misleading in any material respect.
SECTION 4. OBLIGATIONS PENDING AND FOLLOWING THE CLOSING.
4.01 BOARD MEETING OF NAI. Immediately upon the execution of this agreement, the
Directors of NAI shall immediately meet and convene a Special Directors'
Meeting, waiving any and all defects in notice therefore, for the purpose of
taking any and all director actions necessary to implement this agreement.
4.02 BOARD MEETING OF NUKE. Immediately upon the execution of this agreement,
the Directors of NUKE shall immediately call for, schedule and convene a Special
Directors' Meeting, for the purpose of taking any and all director actions
necessary to implement this agreement. This Special meeting may be taken by
written consent should all of the Directors of NUKE reply in writing to a
Special Waiver and Notice of Consent as delivered by the Secretary or CEO of
NUKE to all of the Directors of NUKE. At the Special Directors' Meeting, NAI
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shall have the right to nominate up to four (4) individuals to the Board of NAI.
The individuals so named will be installed as Directors of NUKE at this time and
shall serve in that capacity until such time as the shareholders may elect a new
Board of Directors.
4.03 DELIVERY OF SHARES AND RESTRICTIVE LEGEND. Following closing and in
accordance with the terms of Section 1 above, the Transfer Agent will deliver
the Shares specified in this agreement. All of the shares issued under this
transaction shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER, THE TRANSFER
QUALIFIES FOR AN EXEMPTION FROM OR EXEMPTION TO THE REGISTRATION PROVISIONS
THEREOF. SECTION 5. CONDITIONS TO NAI'S OBLIGATIONS. The obligations of NAI to
consummate the transactions contemplated herein shall be subject to the
satisfaction or waiver, on or before the Closing Date, of each of the following
conditions:
5.01 AFFIRMATIVE VOTE OF THE BOARD OF DIRECTORS OF NAI. This agreement is
subject to the affirmative vote of the majority of the Board of Directors of NAI
at a duly scheduled and convened meeting of the Board of Directors of NAI either
in person, telephonically or by written consent, except that a vote by written
consent must be signed by all of the directors of NAI.
5.02 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of NAI and the Shareholders contained herein shall be true and
correct as of the date when made and shall be true and correct as of the Closing
Date with the same force and effect as though such representations and
warranties were made at and as of the Closing Date.
5.03 DUE DILIGENCE. NUKE, its officers, board of directors as a group,
employees, accountants, attorneys, representatives, advisors and/or agents shall
have completed to their satisfaction, a due diligence review, prior to closing,
of NAI business and financial condition.
5.04 PERFORMANCE. NAI and each of the Shareholders shall have performed and
complied with all agreements, obligations and conditions required by this
Agreement to be performed or complied with by them on or prior to the Closing
Date, and all actions which the Shareholders have been required to cause to be
taken by NAI at or prior to the Closing, as provided in this Agreement, shall
have been taken by them in accordance with the terms of this Agreement.
SECTION 6. CONDITIONS TO NUKE'S OBLIGATIONS. The obligations of NUKE to
consummate the transaction contemplated herein shall be subject to the
satisfaction or waiver, on or before the Closing Date, of each of the following
conditions:
6.01 AFFIRMATIVE VOTE OF THE BOARD OF DIRECTORS OF NUKE. This agreement is
subject to the affirmative vote of the majority of the Board of Directors of
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NUKE at a duly scheduled and convened meeting of the Board of Directors of NUKE
either in person, telephonically or by written consent, except that a vote by
written consent must be signed by all of the directors of NUKE.
6.02 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of NUKE contained herein shall be true and correct as of the date
when made and shall be true and correct as of the Closing Date with the same
force and effect as though such representations and warranties were made at and
as of the Closing.
6.03 DUE DILIGENCE. NAI its officers, board of directors as a group, employees,
accountants, attorneys, representatives, advisors and/or agents shall have
completed to their satisfaction, a due diligence review, prior to closing, of
NUKE business and financial condition.
6.04 PERFORMANCE. NUKE shall have performed and complied with all agreements,
obligations and conditions required by this Agreement to be performed by or
complied with on or prior to the Closing Date.
SECTION 7. INDEMNIFICATION AND DAMAGES.
7.01 INDEMNIFICATION. For a period of twelve (12) months following the Closing
Date, THE PARTIES and its directors, officers, shareholders, employees, agents
and successors and assigns shall indemnify, hold harmless and defend the each
other from and against any and all "Damages" (as hereinafter defined) that arise
from or are in connection with:
(a) Any material breach of, or inaccuracy in, any of the representations
or warranties of THE PARTIES contained in this Agreement or any
certificates delivered hereunder;
(b) Any material breach or default by THE PARTIES of its covenants,
agreements or obligations contained in this Agreement;
(c) Any claim, lawsuit, action or other proceeding that (i) is pending
against THE PARTIES on the Closing Date, or (ii) is brought against
THE PARTIES as a result of or arising from any acts or omissions of
THE PARTIES that have occurred on or before the Closing Date;
7.02 DAMAGES. "Damages," as used in this Section 9, shall mean: (i) demands,
claims, actions, suits, investigations and legal or other proceedings brought
against any indemnified party or parties, and any judgments or assessments,
fines or penalties rendered therein or any settlements thereof, and (ii) all
liabilities, damages, losses, taxes, assessments, costs and expenses (including,
without limitation, reasonable attorneys' and accountants' fees and expenses)
incurred by any indemnified party or parties, to the extent not reimbursed or
paid for by insurance, whether or not they have arisen from or were incurred in
or as a result of any demand, claim, action, suit, assessment or other
proceeding or any settlement or judgment.
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SECTION 8. TERMINATION AND AMENDMENT.
8.01 TERMINATION. This Agreement may be terminated at any time prior to the
Closing, by written notice by the terminating party to the other party:
(a) by mutual written consent duly authorized by the Board of Directors of
NUKE and NAI;
(b) by NAI, if there has been a material breach of any representation,
warranty, covenant or agreement on the part of NUKE, which breach
shall not have been cured within ten (10) business days following
receipt by the breaching party of written notice of such breach from
NAI;
(c) by NUKE, if there has been a material breach of any representation,
warranty, covenant or agreement on the part of NAI, which breach shall
not have been cured within ten (10) business days following receipt by
the breaching party of written notice of such breach from NUKE; or
8.02 EFFECT OF TERMINATION. In the event of termination of this Agreement as
provided in Section 8.1, there shall be no liability or obligation on the part
of NUKE, NAI or their respective officers, directors, shareholders or
Affiliates, except Sections 8 and 9 shall survive such termination.
8.03 AMENDMENT. This Agreement may not be modified or amended except by an
instrument in writing signed on behalf of each of the parties hereto.
8.04 EXTENSION; WAIVER. At any time prior to the Closing, the parties hereto, by
action taken or authorized by their respective Boards of Directors, may, to the
extent legally allowed, (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party.
SECTION 9. MISCELLANEOUS.
9.01 Any notice, receipt, offer or other communication required or permitted
hereunder shall be sufficiently given if delivered in person, or sent by telex,
facsimile transmission or registered or certified United States Mail (postage
prepaid, return receipt requested) addressed to NAI at its principal office
located at 0000 Xxxxxxxxxx Xx., Xxxxx 000, Xxx Xxxx, XX 00000, or addressed to
NUKE at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, and such notice,
receipt, offer or other communication shall be deemed to have been given as of
the date so delivered, sent by telex, transmittal by facsimile, or mailed.
9.02 All section numbers and/or headings used herein are intended for
convenience of reference, and do not mean nor should they be construed to imply
a degree of relative importance between and among the sections hereof, each of
which is equally as important as any other, nor should such numbers or headings
affect the interpretation or enforcement of this Agreement in any way.
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9.03 In the event that any provision hereof shall be determined to be invalid,
void, unenforceable or illegal as a matter of law by a court of competent
jurisdiction, the such provision(s) shall be deemed severed here from and
treated as if never a part hereof, with all remaining sections to continue in
full force and effect. Any and all male or female pronouns, and the use of the
singular or plural form of any word shall be read as if correctly used in the
event of any particular circumstance.
9.04 This Agreement shall be interpreted and construed in accordance with the
laws of the State of Nevada, without regard to its conflict of law rules if any.
9.05 In the event of any dispute or claim relating to or arising out of this
Agreement, and Acquisition, NAI and NUKE (i) each agree that all such disputes
shall be fully and finally resolved by binding arbitration conducted by the
American Arbitration Association in Washoe County, Nevada, and (ii) each waives
its rights to have such disputes tried by a court or jury. However, NAI and NUKE
agree that this arbitration provision shall not apply to any disputes or claims
relating to or arising out of the misuse or misappropriation of either party's
trade secrets, proprietary information, other proprietary rights or property.
9.06 No rules of construction are intended by the parties hereto, nor shall be
employed in the interpretation hereof. For all purposes, all parties hereto
shall be deemed joint authors hereof.
9.07 This Agreement may be executed in any number of separate counterparts, each
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
9.08 Any party to this Agreement may waive any right it may have hereunder or
any breach or default hereunder by any other party hereto; provided that no such
waiver will be effective against the waiving party unless it is in writing and
specifically refers to this Agreement. No waiver will be deemed to be a waiver
of any subsequent or other right, breach or default of the same or similar
nature.
9.09 This Agreement, including schedules and other documents referred to herein
which form a part hereof, embodies the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof, and supersedes all
prior or contemporaneous agreements or understandings (whether written or oral)
among the parties, in respect to the subject matter contained herein. This
Agreement may not be modified, amended or terminated except by written agreement
specifically referring to this Agreement signed by the parties hereto.
9.10 No Shareholder may assign this Agreement, or assign its rights or delegate
its duties hereunder, without the prior written consent of NUKE. Prior to the
Closing, NUKE may not assign this Agreement, or assign its rights or delegate
its duties hereunder, without the prior written consent of the Shareholder
Representative.
11
9.11 This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by and against the Parties; their heirs, executors, personal
representative, successors and assigns, and NAI, its successors and assigns.
Each party hereto, his personal representatives and the fiduciary of the estate
of any deceased Party hereto, should the event occur prior to the closing of
this Agreement shall do all acts and will execute, acknowledge and deliver all
instruments necessary and/or property to make this Agreement effective
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year, and place, first above written.
Rhombic Corporation.
a Nevada corporation
/s/ Xxxxxx Xxxxxxx
------------------------------------ Date September 23, 2002
Xxxxxx Xxxxxxx ----------------------
Chief Financial Officer and Director
NEXT Advisors, Inc.
a Delaware corporation
/s/ Xxxx X. Xxxxxxx
------------------------------------ Date September 23, 2002
Xxxx X. Xxxxxxx ----------------------
President/CEO
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SCHEDULE 1.02A
SHARES REPRESENTING 31% OWNERSHIP
Three Million Five Hundred Seventy Four Thousand Nine Hundred Nineteen
(3,574,919) Shares.
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SCHEDULE 2.05
LEASES AND RENTAL AGREEMENTS
The Company has three leases currently in effect
1) The Company leases approximately 5,838 square feet for Equity Office
Properties at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 Xxx Xxxx XX 00000. The
lease is from November 1, 1999 to October 31, 2004 at $3.05 per square
foot per month, full service.
2) The Company leases its phone system from Xxxxx Fargo leasing for
$1,046.16 per month. The lease terminates January 22, 2004 and has a
buy out of $1.00.
3) The Company leases certain furniture and fixtures from Financial
Pacific Leasing for $664.86 per month. The lease terminates December
15, 2003 and has a buy out of $1.00.
Management intends to buy out leases 2 and 3 at a discount prior to their
termination dates.
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SCHEDULE 2.06
PENDING LITIGATION BY OR AGAINST NEXT ADVISORS, INC.
NAI has one suit pending in the amount of Fifteen Thousand Dollars ($15,000)
with a previous unconverted note holder of the Company.
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SCHEDULE 3.06
PENDING LITIGATION BY OR AGAINST RHOMBIC CORPORATION
None.
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