SECURITIES EXCHANGE AGREEMENT
EXHIBIT
10.16
THIS
AGREEMENT,
dated
as of January 11, 2006, by and between Xxxxxxx
Technologies Corporation,
a
Delaware corporation with its principal offices at 0000 X. 000xx
Xxxxxx
Xxxxx, XX 00000 (“Xxxxxxx”)
and
Mutual
Protective Insurance Company,
a
Nebraska corporation, 0000 Xxxxx 00xx
Xxxxxx,
Xxxxx, Xxxxxxxx 00000 (“MEDICO”).
RECITALS
WHEREAS,
MEDICO desires to exchange Two Thousand Three Hundred Thirty Three (2,333)
Class
“C” Membership Interest Units (the “Units”)
issued
by Resilent LLC, a Nebraska Limited Liability Company, 00000 Xxxx Xxxxx Xxxx,
Xxxxx, Xxxxxxxx 00000 (the “Company”) and beneficially owned and held by MEDICO,
and Xxxxxxx desires to acquire such Units in exchange for One Million Five
Hundred Ninety Three Thousand Seven Hundred Fifty (1,593,750) shares
of
Gabriel’s common stock, par value $.001 (the “Shares”).
NOW,
THEREFORE, in consideration of the premises and mutual agreements contained
herein, the parties agree as follows:
1. Definitions.
“Securities
Act”
means
the Securities Act of 1933, as amended, or any successor law, and regulations
and rules issued pursuant to thereto.
“Registration
of Rights Agreement”
shall
mean for purposes of this Agreement, that certain registration of rights
agreement ancillary hereto, that the parties shall enter into contemporaneously
with this Agreement.
2. Agreement
Void Date.
The
issuance and exchange (the “Closing”)
provided for in this Agreement will take place at such time and place as may
be
mutually determined by the parties. In the event the Closing does not take
place
prior to February 1, 2006, either party may terminate this
Agreement.
3. Exchange
of Securities.
Subject
to and upon the terms and conditions set forth in this Agreement, MEDICO hereby
agrees to transfer, convey, assign and deliver the Units to Xxxxxxx on the
date
and at the time of the Closing in consideration of and exchange for the Shares.
Subject to and upon the terms and conditions set forth in this Agreement,
Xxxxxxx hereby agrees to transfer, convey, assign and deliver the Units to
Xxxxxxx on the date and at the time of the Closing in consideration of and
exchange for the Units.
4. Directors.
Xxxxxxx
hereby agrees that MEDICO shall retain one director on the Board of Directors
of
the Company and shall vote the Units for such director nominated by
MEDICO.
5. MEDICO
Representations and Warranties.
MEDICO
hereby represents and warrants to Xxxxxxx as follows:
(a) Organization;
Existence; Good Standing.
MEDICO
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Nebraska.
-1-
(b) Due
Authorization.
MEDICO
has the full corporate power and authority to enter into this Agreement and
the
Registration Rights Agreement and to consummate the transactions contemplated
hereby and thereby. Each of the Agreement and Registration Rights Agreement
have
been duly executed and delivered by MEDICO and constitutes the valid and binding
obligation of MEDICO enforceable against MEDICO in accordance with its
terms.
(c) No
Conflicts.
The
execution, delivery and performance by MEDICO of this Agreement and the
Registration Rights Agreement, and the consummation of the transactions
contemplated hereby and thereby do not and will not (a) violate or conflict
with
any provision of each of MEDICO’s Articles of Incorporation or Bylaws, (b)
breach any provision of, or be an event that is (or with the passage of time
will result in) a default, or result in the cancellation or acceleration of
(whether after the giving of notice or lapse of time or both) any obligation
under, or result in the imposition or creation of any encumbrances upon any
of
the assets of MEDICO pursuant to, any material contract, mortgage, lien, lease,
agreement or instrument to which MEDICO is a party or by which MEDICO is bound,
or (c) require any authorization, consent, order, permit or approval of, or
notice to, or filing, registration or qualification with, any government
authority except in the cases of (b) and (c) as will not singly or in the
aggregate have a Material Adverse Effect on MEDICO.
(d) Investment
Intent.
MEDICO
is acquiring the Securities as principal for its own account for investment
purposes only and not with a view to or for distributing or reselling such
Securities or any part thereof, without prejudice, however, to MEDICO’s right at
all times to sell or otherwise dispose of all or any part of such Securities
in
compliance with applicable federal and state securities laws. MEDICO does not
have any agreement or understanding, directly or indirectly, with any person
to
distribute any of the Securities.
(e) Adequate
Information.
MEDICO
has made an adequate investigation of the business, finances and prospects
of
Xxxxxxx, including a review of Gabriel’s SEC Reports (as such term is defined in
paragraph 6(f) below) with the Securities and Exchange Commission (“SEC”) made
by Xxxxxxx during the twelve months preceding this Agreement.
(f) Investor
Status.
At the
time MEDICO was offered the Securities, it was, and at the date hereof it is,
an
“accredited investor” as defined in Rule 50 1(a) under the Securities
Act.
6. Xxxxxxx
Representations and Warranties.
Xxxxxxx
represents and warrants to MEDICO as follows:
(a) Organization;
Existence; Good Standing.
is a
corporation duly organized, validly existing and in good standing under the
laws
of the State of Delaware. Xxxxxxx is not in violation of any of the provisions
of its Certificate of Incorporation or Bylaws. Xxxxxxx is duly qualified to
conduct its business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, would not,
individually or in the aggregate, have or reasonably be expected to result
in
any material adverse change, either individually or in the aggregate, in the
business, operations, properties, assets or condition (financial or other),
or
any event that has had or would reasonably be expected to have a material
adverse effect (a “Material
Adverse Effect”)
on
Xxxxxxx.
(b) Due
Authorization.
Xxxxxxx
has the full corporate power and authority to enter into this Agreement and
to
consummate the transactions contemplated hereby and thereby. Each of the
Agreement and Registration Rights Agreement has been duly executed and delivered
by Xxxxxxx and constitutes the valid and binding obligation of Xxxxxxx
enforceable against Xxxxxxx in accordance with its terms. No further corporate
action is required by Xxxxxxx in connection therewith. The issuance of the
Xxxxxxx Shares has been duly authorized, and upon issuance to MEDICO pursuant
to
the terms hereof, will be validly issued, fully paid and nonassessable and
are
and will be free and clear of any lien or encumbrances except as set forth
and
under applicable securities laws.
-2-
(c) No
Brokers.
Xxxxxxx
has not incurred, and will not incur, directly or indirectly, any liability
for
brokerage or finders’ fees or agents’ commissions or investment bankers’ fees or
any similar charges in connection with this Agreement or any transaction
contemplated hereby.
(d) No
Conflicts.
The
execution, delivery and performance by Xxxxxxx of each of the Agreement and
Registration Rights Agreement and the consummation by Xxxxxxx of the
transactions contemplated thereunder do not and will not (a) violate or conflict
with any provision of each of Gabriel’s Certificate of Incorporation or Bylaws,
(b) breach any provision of, or be an event that is (or with the passage of
time
will result in) a default of, or result in the cancellation or acceleration
of
(whether after the giving of notice or lapse of time or both) any obligation
under, or result in the imposition or creation of any encumbrances upon any
of
the assets of Xxxxxxx pursuant to, any material contract, mortgage, lien, lease,
agreement or instrument to which Xxxxxxx is a party or by which Xxxxxxx is
bound, (c) violate any legal requirement applicable to Xxxxxxx, including the
legal requirements of the National Association of Securities Dealers, or any
of
its properties or assets, or (d) require any authorization, consent, order,
permit or approval of, or notice to, or filing, registration or qualification
with, any government authority except as will not singly or in the aggregate
have a Material Adverse Effect on Xxxxxxx and except for filings required by
state securities laws and the filing of a Notice of Sale of Securities on Form
D
with the SEC under Regulation D of the Securities Act of 1933, as amended (the
“Securities
Act”).
(e) No
Litigation.
There
is no litigation, proceeding or investigation pending or, to the best knowledge
of Xxxxxxx, threatened against Xxxxxxx in any federal, state or local court,
or
before any administrative agency.
(f) Exchange
Act Filings; Financial Statements.
Xxxxxxx
has filed all reports, forms or other information required to be filed by it
under the Securities Act and the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”),
including pursuant to Section 13(a) or 15(d) thereof, for the twelve months
preceding the date hereof (or such shorter period as Xxxxxxx was required by law
to file such reports, forms or other information) (the foregoing materials
being
collectively referred to herein as the “SEC
Reports”)
on a
timely basis or has timely filed a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such extension.
As
of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Securities Act and the Exchange Act and the rules
and regulations of the SEC promulgated thereunder. The SEC Reports did not
at
the time they were filed (or if amended or superseded by another SEC Report
filed prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated in such SEC Reports or necessary in order to make the
statements in such SEC Reports, in light of the circumstances under which they
were made, not misleading. The financial statements of Xxxxxxx included in
the
SEC Reports comply, in all material respects, with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto
as in
effect at the time of filing. Such financial statements have been prepared
in
accordance with GAAP applied on a consistent basis during the periods involved,
except as may be otherwise specified in such financial statements or the notes
thereto, and fairly present in all material respects the financial position
of
Xxxxxxx and its consolidated subsidiaries as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject,
in
the case of unaudited statements, to normal, immaterial, year-end audit
adjustments. For purposes of this Agreement, any reports, forms or other
information provided to the SEC, whether by filing, furnishing or otherwise
providing, is included in the term “filed” (or any derivations thereof). Xxxxxxx
is not subject to any formal or informal SEC investigation.
(g) No
Undisclosed Liabilities.
Xxxxxxx
does not have any liability, indebtedness, obligation, expense, claim,
deficiency, guaranty or endorsement of any type, whether accrued, absolute,
contingent, matured, unmatured or other of a nature whether or not required
to
be reflected in financial statements in accordance with GAAP, (“Liabilities”)
which
individually or in the aggregate are material to the business, results of
operations or financial condition of the Company except Liabilities that: (i)
are reflected in the SEC Reports, or (ii) have arisen since the date of the
most
recent balance sheet contained in the SEC Reports in the ordinary course of
Gabriel’s business consistent with past practices.
-3-
(h) Capitalization.
The
Form I0-KSB filed by Xxxxxxx for the year ended June 30, 2005, contains a true
and correct statement of the authorized, issued and outstanding equity ownership
of Xxxxxxx as of the date hereof. Other than as set forth therein, there are
no
other outstanding shares of capital stock or other securities of Xxxxxxx and
no
outstanding subscriptions, options, warrants, puts, calls, rights, exchangeable
or convertible securities, or other commitments or agreements of any nature
relating to the capital stock or other securities of Xxxxxxx, or otherwise
obligating Xxxxxxx to issue, transfer, sell, purchase, redeem or otherwise
acquire such stock or securities. All outstanding shares of Gabriel’s common
stock are duly authorized and validly issued and are fully paid and
non-assessable.
(i) Press
Releases.
The
press releases, if any, disseminated by Xxxxxxx during the twelve months
preceding the date of this Agreement do not, individually or taken as a whole
with the SEC Reports, contain any untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were
made and when made, not misleading.
(j) Material
Changes.
Since
the date of the latest audited financial statements included within the SEC
Reports, (i) there has been no event, occurrence or development that has had
or
that could reasonably be expected to result in a Material Adverse Effect on
Xxxxxxx, (ii) Xxxxxxx has not incurred any liabilities (contingent or otherwise)
of a kind required to be disclosed in Gabriel’s financial statements pursuant to
GAAP other than (A) trade payables, accrued expenses and other liabilities
incurred in the ordinary course of business consistent with past practice and
(B) liabilities (not to exceed $100,000) not required to be disclosed in filings
made with the SEC, (iii) Xxxxxxx has not altered any method of accounting or
the
identity of its auditors, (iv) Xxxxxxx has not declared or made any dividend
or
distribution of cash or other property to its shareholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock, and (v) Xxxxxxx has not issued any equity securities, except pursuant
to
existing Xxxxxxx stock option plans and consistent with past
practice.
(k) Labor
Relations.
No
material labor dispute exists or, to the knowledge of Xxxxxxx, is imminent
with
respect to any of the employees of Xxxxxxx.
(l) Tax
Consequences.
The
exchange of the Units for the Shares (the “Exchange”) shall constitute a “plan
of reorganization” within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the “Code”). Neither Xxxxxxx nor any of its affiliates
has taken or agreed to take any action that would reasonably be expected to
cause the Exchange to fail to qualify as a reorganization under Section 368(a)
of the Code. Xxxxxxx is not aware of any agreement, plan or other circumstance
that would prevent the Exchange from qualifying as a reorganization under
Section 3 68(a) of the Code.
(m) Compliance.
Except
as set forth in the SEC Reports, Xxxxxxx (i) is not in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by Xxxxxxx), nor
has
Xxxxxxx received notice of a claim that it is in default under or that it is
in
violation of, any indenture, loan or credit agreement or any other agreement
or
instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is not
in
violation of any order of any court, arbitrator or governmental body, and (iii)
is not and has not been in violation of any statute, rule or regulation, or
any
governmental authority, including all foreign, federal, state and local laws
relating to taxes, environmental protection, occupational health and safety,
product quality and safety and employment and labor matters, except
in
each case as could not, individually or in the aggregate, have or reasonably
be
expected to result in a Material Adverse Effect on Xxxxxxx. Xxxxxxx is in
compliance with all effective requirements of the Xxxxxxxx-Xxxxx Act of 2002,
as
amended, and the rules and regulations thereunder, that are applicable to it,
except where such noncompliance could not have or reasonably be expected to
result in a Material Adverse Effect on Xxxxxxx.
-4-
(n) Regulatory
Permits.
Xxxxxxx
possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct
its
business as described in the SEC Reports, except where the failure to possess
such permits could not, individually or in the aggregate, have or reasonably
be
expected to result in a Material Adverse Effect on Xxxxxxx, and Xxxxxxx has
not
received any notice of proceedings relating to the revocation or modification
of
any such permits except as would not in the aggregate result in a Material
Adverse Effect on Xxxxxxx.
(o) Title
to Assets.
Xxxxxxx
has good and marketable title in fee simple to all real property owned by it
that is material to its business and good and marketable title in all personal
property owned by it that is material to its business, in each case free and
clear of all liens, except for liens as do not materially affect the value
of
such property and do not materially interfere with the use made and proposed
to
be made of such property by Xxxxxxx. Any real property and facilities held
under
lease by Xxxxxxx are held by it under valid, subsisting and enforceable leases
of which Xxxxxxx is in compliance, except as could not, individually or in
the
aggregate, have or reasonably be expected to result in a Material Adverse Effect
on Xxxxxxx.
(p) Patents
and Trademarks.
Xxxxxxx
has, or has rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, copyrights, licenses and
other similar intellectual property rights that are necessary or material for
use in connection with its business as described in the SEC Reports and which
the failure to so have could, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect on Xxxxxxx
(collectively, the “Intellectual
Property Rights”).
Except as disclosed in the SEC Reports, Xxxxxxx has not received a written
notice that the Intellectual Property Rights used by it violate or infringe
upon
the rights of any Person. Except as set forth in the SEC Reports, all such
Intellectual Property Rights are enforceable and, to the knowledge of Xxxxxxx,
there is no existing infringement by another person of any of the Intellectual
Property Rights.
(q) Insurance.
Xxxxxxx
maintains such insurance relating to its business, operations, assets, key
employees and officers and directors as is reasonable, customary and prudent
for
companies engaged in similar businesses.
(r) Transactions
with Affiliates and Employees.
Except
as set forth in the SEC Reports, none of the officers or directors of Xxxxxxx,
and, to the knowledge of Xxxxxxx, none of the employees of Xxxxxxx is presently
a party to any transaction with Xxxxxxx (other than for services as employees,
officers and directors), 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, director or such employee or, to the knowledge of Xxxxxxx, any entity
in which any officer, director, or any such employee has a substantial interest
or is an officer, director, trustee or partner.
(s) Internal
Accounting Controls.
Xxxxxxx
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization,
and (iv)
the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Xxxxxxx has established disclosure controls and procedures (as
defined in the Exchange Act rules I 3a- 15(e) and 15(d)-I 5(e)) for Xxxxxxx
and
designed such disclosure controls and procedures to ensure that material
information relating to Xxxxxxx, including its subsidiaries, is made known
to
the certifying officers by others within those entities, particularly during
the
period in which Gabriel’s Form l0-KSB or 10-QSB, as the case may be, is being
prepared. Gabriel’s certifying officers have evaluated the effectiveness of
Gabriel’s controls and procedures as of the last day of the period covered by
the Form I0-QSB for Gabriel’s most recently ended fiscal quarter (such date, the
“Evaluation
Date”).
Xxxxxxx presented in its most recently filed Form 10-KSB or Form 10-QSB the
conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date.
Xxxxxxx has disclosed in its most recently filed Form 10-KSB or Form 10-QSB
any
change in the registrant’s internal control over financial reporting that
occurred during the registrant’s most recent fiscal quarter that has materially
affected, or is reasonably likely to materially affect, the registrant’s
internal control over financial reporting.
-5-
(t) Solvency.
Based
on the financial condition of Xxxxxxx as of the date hereof (i) Gabriel’s fair
saleable value of its assets exceeds the amount that will be required to be
paid
on or in respect of Gabriel’s existing debts and other liabilities (including
known contingent liabilities) as they mature; (ii) Gabriel’s assets do not
constitute unreasonably small capital to carry on its business for the current
fiscal year as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the
business conducted by Xxxxxxx, and projected capital requirements and capital
availability thereof; and (iii) the current cash flow of Xxxxxxx, together
with
the proceeds Xxxxxxx would receive, were it to liquidate all of its assets,
after taking into account all anticipated uses of the cash, would be sufficient
to pay all amounts on or in respect of its debt when such amounts are required
to be paid. Xxxxxxx does not intend to incur debts beyond its ability to pay
such debts as they mature (taking into account the timing and amounts of cash
to
be payable on or in respect of its debt).
(u) Certain
Registration Matters.
Assuming the accuracy of MEDICO’s representations and warranties set forth in
Section 5, no registration under the Securities Act is required for the offer
and sale of the Securities by Xxxxxxx to MEDICO under this Agreement. Xxxxxxx
is
eligible to register the resale of its Securities by MEDICO on Form S-2
promulgated under the Securities Act. Xxxxxxx has not granted or agreed to
grant
to any person any rights (including “piggy back” registration rights) to have
any securities of Xxxxxxx registered with the SEC or any other governmental
authority that have not been satisfied or exercised.
(v) Investment
Company.
Xxxxxxx
is not, and is not an affiliate of, and immediately following the transactions
contemplated hereunder will not have become, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
(w) No
Anti-Takeover Provisions.
Xxxxxxx
is not a party to any agreement for control share acquisition, business
combination, or equity distribution designed for anti-takeover purposes and
none
will be triggered by the execution of this Agreement. Xxxxxxx has taken all
necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution
under
a rights agreement) or other similar anti-takeover provision under Gabriel’s
Certificate of Incorporation or Bylaws (or similar charter documents) or the
laws of its state of incorporation that is or would become applicable to MEDICO
or shareholders of Xxxxxxx prior to the date hereof as a result of MEDICO and
Xxxxxxx fulfilling their obligations or exercising their rights under this
Agreement, including Gabriel’s issuance of the Securities and MEDICO’s ownership
of the Securities.
(x) Representations
and Materials Complete.
None of
the representations or warranties made by Xxxxxxx in this Agreement, nor any
statement made in any schedule or certificate furnished by Xxxxxxx pursuant
to
this Agreement, contains or will contain at the Closing, any untrue statement
of
a material fact, or omits or will omit at the Closing to state any material
fact
necessary in order to make the statements contained herein or therein, in the
light of the circumstances under which made, not misleading. Xxxxxxx has
delivered or made available true and complete copies of each document (or
summaries of same) that has been requested by MEDICO or its
counsel.
7. Legend
on Stock Certificates.
MEDICO
acknowledges that the certificates representing the Shares to be received by
MEDICO in exchange for the Units will be inscribed with the following
legend:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAW. THEY MAY NOT
BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT THEN IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULES 144
AND
145 OF SUCH ACT.”
-6-
8. Indemnification.
Xxxxxxx
covenants and agrees that it will indemnify, defend, protect and hold harmless
MEDICO, its directors, officers, employees and agents (the “MEDICO
Indemnified Parties”)
at all
times from and after the date of this Agreement against all losses, claims,
damages, actions, suits, proceedings, demands, assessments, adjustments, costs
and expenses (including specifically, but without limitation, reasonable
attorneys’ fees and expenses of investigation) (“MEDICO
Losses”)
incurred or suffered by any of the MEDICO Indemnified Parties based upon,
resulting from or arising out of any inaccuracy or breach of any representation
or warranty of Xxxxxxx contained in this Agreement. Each of the representations
and warranties made by MEDICO or Xxxxxxx in this Agreement shall survive the
Closing.
9. Miscellaneous.
(a) Amendments.
No
amendment of any provision of this Agreement shall be effective unless the
amendment is in writing and signed by each of the parties to this Agreement,
and
no waiver of any provision shall be effective unless such waiver shall be in
writing and signed by the party waiving such provision, and then such waiver
shall be effective only in the specific instance and for the specific purpose
for which given.
(b) Notices.
All
notices and other communications provided for hereunder shall be in writing
(including telegraphic, facsimile, telex or cable communication) and mailed,
telegraphed, telecopied, telexed, cabled or delivered:
If
to
MEDICO:
Mutual
Protective Insurance Company
Attn:
Xxxxxxx Xxxx
0000
Xxxxx 00xx Xxxxxx
Xxxxx,
XX
00000
Facsimile:
(000)000-0000
If
to the
Xxxxxxx:
Xxxxxxx
Technologies Corp.
Attn:
Xxxxx Xxxxxxxxx
0000
Xxxxx 000xx
Xxxxxx
Xxxxx,
XX
00000
Facsimile:
(000) 000-0000
or,
as to
any such party, at such other address as shall be designated by such party
in a
written notice to the other parties.
(c) No
Waiver: Remedies.
Except
as otherwise provided herein, any and all remedies herein expressly conferred
upon a party will be deemed cumulative with and not exclusive of any other
remedy conferred hereby, or by law or equity upon such party, and the exercise
by a party of any one remedy will not preclude the exercise of any other remedy.
No failure or delay on the part of any party hereto in the exercise of any
right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right.
(d) Survival
of Agreements, etc.
The
representations, warranties, covenants and provisions contained in the Agreement
shall survive the date hereof and the purchase of the Units by Xxxxxxx
hereunder.
(e) Severability
of Provisions.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or thereof or affecting the validity or enforceability of
such
provision in any other jurisdiction.
-7-
(f) Integration.
This
Agreement sets forth the entire understanding of the parties hereto with respect
to all matters contemplated hereby and thereby supersedes any previous
agreements and understandings among them concerning such matters. No statements
or agreements, oral or written, made prior to or at the signing hereof, shall
vary, waive or modify the written terms hereof.
(g) Binding
Effect: Governing Law.
This
Agreement shall be binding upon and inure to the benefit of MEDICO and Xxxxxxx
and their respective successors and assigns, except that neither MEDICO nor
Xxxxxxx may assign this Agreement, or the rights or obligations hereunder,
without the prior written consent of the other party. This Agreement shall
be
governed by, and construed in accordance with, the laws of the State of Nebraska
applicable to agreements and instruments executed and performed in the State
of
Nebraska.
(h) Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and all of which when taken together
shall constitute but one and the same agreement.
(i) Facsimile
and E-Mail Signatures.
Any
signature page delivered by a fax machine or by e-mail will be binding to the
same extent as an original signature page, with regard to any agreement subject
to the terms hereof or any amendment thereto. Any party who delivers such a
facsimile signature page or scanned signature page agrees to later deliver
an
original counterpart to any party which requests it.
[Remainder
of page intentionally left blank]
-8-
IN
WITNESS WHEREOF,
Xxxxxxx
and MEDICO have caused this SECURITIES EXCHANGE AGREEMENT to be duly executed
as
of the date first written above.
XXXXXXX
TECHNOLOGIES CORPORATION
By:
/s/
Xxxxx
Xxxxxxxxx
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|
Title:
|
President
and CEO
|
MUTUAL
PROTECTIVE INSURANCE CORPORATION
By:
/s/
Xxxxxxx X.
Xxxx
|
Name:
|
Xxxxxxx
X. Xxxx
|
|
Title:
|
President
|
-9-
