Exhibit 99.2
AGREEMENT AND PLAN OF MERGER
By and Among
ELLIGENT CONSULTING GROUP, INC.,
XXXXX ACQUISITION, INC.,
XXXXX CAPITAL LIMITED
and
THE SHAREHOLDERS OF XXXXX
Dated
August 26, 1998
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "AGREEMENT") is made as of
August 1, 1998, by and among Elligent Consulting Group, Inc., a Nevada
corporation (the "COMPANY"), Xxxxx Acquisition, Inc., a Delaware corporation
("ACQUISITION SUBSIDIARY"), a wholly-owned subsidiary of the Company, Xxxxx
Capital Limited, a Delaware corporation ("XXXXX"), and the shareholders of Xxxxx
(the "XXXXX SHAREHOLDERS") as listed on Exhibit 2.4. By this reference Exhibit
2.4 and all other exhibits are made a part of this Agreement.
WITNESSETH:
In consideration of the mutual covenants and agreements hereinafter
set forth, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
TERMS OF THE MERGER
1.1 MERGER. At the Effective Time (as hereinafter defined), upon the
terms and subject to the conditions of this Agreement and the Plan of Merger (as
hereinafter defined), the Acquisition Subsidiary shall merge with and into
Xxxxx (the "Merger") in accordance with the Delaware General Corporation Law
(the "Delaware Act"). At the Effective Time, the separate existence of
Acquisition Subsidiary shall cease, and Xxxxx, as the surviving corporation in
the Merger (the "Surviving Corporation"), shall become a subsidiary of the
Company. The Company shall execute a plan of merger (the "Plan of Merger") and
articles of merger ("Articles of Merger") in order to comply in all respects
with the requirements of the Delaware Act and with the provisions of this
Agreement.
1.2 EFFECTIVE TIME. The Merger shall become effective at the time of
the filing of the Plan of Merger and Articles of Merger with the Secretary of
State of Delaware in accordance with the applicable provisions of the Delaware
Act or at such later time as may be specified in the Articles of Merger. The
Plan of Merger and Articles of Merger shall be filed as soon as practicable
after all of the conditions set forth in this Agreement have been satisfied or
waived by the party or parties entitled to the benefit of the same. Xxxxx and
the Company shall mutually determine the time of such filing and the place where
the closing of the Merger (the "CLOSING") shall occur. The time when the Merger
shall become effective is herein referred to as the "EFFECTIVE TIME," and the
date on which the Effective Time occurs is herein referred to as the "CLOSING
DATE."
1.3 MERGER CONSIDERATION. Subject to the provisions of this
Agreement, at the Effective Time, the issued and outstanding shares of common
stock of Xxxxx (the "XXXXX STOCK") held by a Xxxxx Shareholder shall, by virtue
of the Merger and without any action on the part of the holders thereof, be
converted into the right to receive, and there shall be paid and issued as
hereinafter provided in exchange therefor shares of the Company's Common Stock,
par value $.001 (the "COMPANY STOCK"), in an amount which is the product of the
Shareholders
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current percent ownership in Xxxxx and 12,950,000. The aggregate number of
shares to be issued to the Xxxxx Shareholders shall be known as the "MERGER
CONSIDERATION." No fractional shares shall be issued. The Merger Consideration
shall be payable to the Xxxxx Shareholders as of the Effective Time. The
aggregate number of shares of Company Stock to be issued pursuant to this
Agreement and that certain Agreement dated as of August 1, 1998 by and between
Xxxxx, Xxxxx Holdings LLC, Conversion Services International, Inc., Xxxxx Xxxxxx
and Xxxxx Xxxxxxx pursuant to which Xxxxx shall acquire all of the outstanding
equity securities of CSI will, in no case, exceed 12,950,000.
1.4 XXXXX SHAREHOLDERS' RIGHTS UPON MERGER. Upon consummation of the
Merger, the holders of certificates which theretofore represented shares of
Xxxxx Stock (the "CERTIFICATES") shall cease to have any rights with respect
thereto, and, subject to applicable law and this Agreement, shall only have the
right to receive the number of shares of Company Stock into which their shares
of Xxxxx Stock have been converted pursuant to this Agreement and the Merger.
1.5 SURRENDER AND EXCHANGE OF SHARES; PAYMENT OF MERGER
CONSIDERATION. In connection with the Closing, each Shareholder shall surrender
and deliver the Certificates to the Company together with a duly completed and
executed transmittal letter, waiver and release in the form attached hereto as
EXHIBIT 1.5 ("TRANSMITTAL LETTER"). Upon the later to occur of the Effective
Time or such surrender and delivery, the holder shall receive a certificate
representing the number of whole shares of Company Stock to which such holder is
entitled pursuant to this Agreement. Until so surrendered and exchanged, each
outstanding Certificate after the Effective Time shall be deemed for all
purposes to evidence the right to receive that number of whole shares of Company
Stock into which the Xxxxx Stock previously represented by the Certificate has
been converted pursuant to this Agreement; PROVIDED, HOWEVER, that no dividends
or other distributions, if any, in respect of the shares of the Company Stock,
declared after the Effective Time and payable to holders of record after the
Effective Time, shall be paid to the holders of any unsurrendered Certificates
until such Certificates and Transmittal Letters are surrendered and delivered as
provided herein. Holders of any unsurrendered Certificates shall not be
entitled to vote the Company Stock involved until such Certificates are
exchanged pursuant to this Agreement.
1.6 CERTIFICATE OF INCORPORATION. At and after the Effective Time,
the Certificate of Incorporation of Xxxxx shall be the Certificate of
Incorporation of the Surviving Corporation (subject to any amendment specified
in the Plan of Merger and any subsequent amendment).
1.7 BYLAWS. At and after the Effective Time, the Bylaws of Xxxxx
shall be the Bylaws of the Surviving Corporation (subject to any amendment
specified in the Plan of Merger and any subsequent amendment).
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1.8 DIRECTORS AND OFFICERS. At and after the Effective Time, until
their successors are duly elected or appointed, the directors and the officers
of the Surviving Corporation shall be as follows:
Directors Officers
--------- --------
Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx - President and CEO
Xxxxx Xxxxxx Xxxxx Xxxxxx - Vice President of Operations
Xxxxx Xxxxxx Xxxxx Xxxxxx - Chief Financial Officer
The Company shall also take whatever action is necessary to duly elect
and appoint such individuals to the corresponding positions in the Company,
including but not limited to, any required expansion of the Company's Board of
Directors, appointment of such individuals as Directors until the Company's
next Annual Meeting of Shareholders and appointment of such individual to the
proper executive offices.
1.9 OTHER EFFECTS OF MERGER. The Merger shall have all further effects as
specified in the applicable provisions of the Delaware Act.
1.10 ADDITIONAL ACTIONS. If, at any time after the Effective Time, the
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of Acquisition Subsidiary or otherwise to carry out this
Agreement, the officers and directors of the Surviving Corporation shall be
authorized to execute and deliver, in the name and on behalf of Acquisition
Subsidiary, all such deeds, bills of sale, assignments and assurances and to
take and do, in the name and on behalf of Acquisition Subsidiary, all such other
actions and things as may be necessary or desirable to vest, perfect or confirm
any and all right, title and interest in, to and under such rights, properties
or assets in the Surviving Corporation or otherwise to carry out this Agreement
and the transactions contemplated hereby.
1.11 TAX-FREE REORGANIZATION. The parties intend that the Merger qualify
as a tax-free reorganization pursuant to Section 368 of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder (the "CODE").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
XXXXX AND THE XXXXX SHAREHOLDERS
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Xxxxx and the Xxxxx Shareholders represent and warrant to the Company
and the Acquisition Subsidiary as follows, which representations and warranties
are made as of the date hereof and as of the Closing Date and shall survive the
Closing for a period of two (2) years from and after the Effective Time:
2.1 ORGANIZATION. Xxxxx is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
2.2 AUTHORIZATION. The execution, delivery and performance by Xxxxx
of this Agreement has been duly and validly authorized by the Board of Directors
of Xxxxx and the Xxxxx Shareholders, and this Agreement constitutes the valid
and binding agreement of Xxxxx, enforceable in accordance with its terms,
subject to (i) general principles of equity, regardless of whether enforcement
is sought in a proceeding in equity or at law, and (ii) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium, receivership or
other similar laws relating to or affecting creditors' rights generally.
2.3 NON-CONTRAVENTION. Neither the execution nor the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will result in the breach of any term or provision of, or constitute a default
under, the Certificate of Incorporation or Bylaws of Xxxxx.
2.4 CAPITAL STRUCTURE AND OWNERSHIP. Xxxxx has authorized, issued
and outstanding the number of shares of stock and other securities so indicated
on EXHIBIT 2.4 attached hereto. All such outstanding securities have been duly
and validly issued, are fully paid and nonassessable and have not been issued in
violation of the preemptive rights of any person or entity or applicable
securities laws. No shares of any other class of capital stock of Xxxxx are
outstanding. There are no outstanding options, warrants or other rights to
acquire securities of Xxxxx, nor are there securities outstanding which are
convertible into securities of Xxxxx, except as set forth on said EXHIBIT 2.4.
Except pursuant to applicable corporate laws and as set forth on EXHIBIT 2.4
attached hereto, there are no restrictions including, but not limited to,
self-imposed restrictions on the retained earnings of the Company or on the
ability of the Company to declare and pay dividends.
The name and residence address of each of the Xxxxx Shareholders and
the respective number and percentage of outstanding shares held by each
Shareholder are set forth on EXHIBIT 2.4 attached hereto. Such shares and other
securities are owned as indicated on said EXHIBIT 2.4 beneficially and of
record, free and clear of all restrictions, liens, claims, charges, security
interests, options or other title defects or encumbrances. At the Effective
Time, the shares of Xxxxx Stock shall be free and clear of all restrictions,
liens, claims, charges, security interests, options or other title defects or
encumbrances.
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2.5 BUSINESS OPERATIONS. After the Merger, it is anticipated that
the Surviving Corporation will continue the historic business of Xxxxx.
2.6 FUTURE ACTION. Xxxxx has no current plan or intention to
liquidate the Surviving Corporation, to merge the Surviving Corporation with or
into another corporation, or to sell or otherwise dispose of the Surviving
Corporation Common Stock, except for dispositions made in the ordinary course of
business.
2.7 DISCLOSURE. No representation, warranty or statement made by or
on behalf of Xxxxx or the Xxxxx Shareholders in this Agreement (including, but
not limited to, the Exhibits attached hereto) or in the certificates or other
materials furnished or to be furnished to the Company or its representatives in
connection with this Agreement and the transactions contemplated hereby or
thereby, contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact required to be stated herein or
therein or necessary to make the statements contained herein or therein not
misleading. All information and documents provided prior to the date of this
Agreement, and all information and documents subsequently provided, to the
Company or its representatives by or on behalf of Xxxxx or the Xxxxx
Shareholders are or contain, or will be or will contain as to subsequently
provided information or documents, true, accurate and complete information with
respect to the subject matter thereof and are, or will be as to subsequently
provided information or documents, fully responsive to any specific request made
by or on behalf of the Company or its representatives. Xxxxx shall promptly
notify the Company of any change or event which could adversely affect the
assets, operations, business, condition or prospects of Xxxxx.
2.8 ACQUISITION FOR INVESTMENT. The Xxxxx Shareholders are acquiring
the Company Stock for their own account for investment, with no present
intention of dividing their interests with others or of reselling or otherwise
disposing of all or any portion of the same except with respect to certain
limited transactions (the "LIMITED TRANSACTIONS") which transactions will not
cause the loss of the exemption pursuant Regulation D under the Securities Act
of 1993, as amended (the "SECURITIES ACT") upon which the Company is relying in
the issuance of the Company Stock; except for the Limited Transactions, the
Xxxxx Shareholders do not have in mind any sale of the Company Stock either
currently or after the passage of a fixed or determinable period of time or upon
the occurrence or non-occurrence of any predetermined event or circumstance; the
Xxxxx Shareholders have no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing for or which is
likely to compel a disposition of the Company Stock; the Xxxxx Shareholders are
not aware of any circumstances presently in existence which are likely in the
future to prompt a disposition of the Company Stock. The Xxxxx Shareholders are
"accredited investors" as defined in the Securities Act; the Xxxxx Shareholders
possess the business experience to make an informed decision to acquire the
Company Stock; and, the Xxxxx Shareholders have the financial means to bear the
economic risk of the investment in the Company Stock.
2.9 BROKER'S OR FINDER'S FEE. No agent, broker, person or firm
acting on behalf of Xxxxx or the Xxxxx Shareholders is, or will be, entitled to
any commission or broker's or finder's fees from any of the parties hereto, or
from any person controlling, controlled by or
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under common control with any of the parties hereto, in connection with any of
the transactions contemplated herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE ACQUISITION SUBSIDIARY
The Company and the Acquisition Subsidiary represents and warrants to
Xxxxx and the Xxxxx Shareholders as follows, which representations and
warranties are made as of the date hereof and as of the Closing Date and shall
survive the Closing for a period of two (2) years:
3.1 ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada with
full power and authority to own its properties and assets and to carry on
lawfully its business as currently conducted, and is not required to be
qualified to do business as a foreign corporation in any other jurisdiction.
Except for the Acquisition Subsidiary, the Company does not have any other
subsidiaries, does not own or hold any securities of, or any interest in, any
other person or entity and is not subject to any joint venture, partnership,
limited liability company or other arrangement or contract which is or could be
treated as a partnership for federal income tax purposes.
3.2 STATUS OF ACQUISITION SUBSIDIARY. As of the Effective Time, the
Acquisition Subsidiary will be a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and will not have
any material liabilities or any material assets except the Company Stock to be
used as the Merger Consideration and shall have joined in this Agreement.
3.3 PUBLIC STATUS OF THE COMPANY. The Company is a publicly held
company and is a reporting company under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). All reports due under the Exchange Act have been
filed as of the date of this Agreement and are true, correct and complete in all
material respects.
3.4 ARTICLES OF INCORPORATION, BYLAWS AND AGREEMENTS. A true,
complete and correct copy of the Articles of Incorporation and Bylaws of the
Company and the Certificate of Incorporation and Bylaws of the Acquisition
Subsidiary together with all amendments thereto shall have been delivered to
Xxxxx as of the Effective Date. There are no agreements by and between or among
any or all of the security holders of the Company, whether or not the Company is
a party thereto, imposing any restrictions upon the transfer of or otherwise
pertaining to the securities of the Company or the ownership thereof. Any and
all such restrictions shall be duly complied with or effectively waived as of
the Closing.
3.5 VALID SHARES. The Company Stock, when issued pursuant to this
Agreement, will have been duly and validly authorized and issued, will be fully
paid and nonassessable and will not have been issued in violation of the
preemptive rights of any person
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or entity. Prior to the issuance of the Company Stock in payment of the Merger
Consideration, the Company has 1,594,225 share of Common Stock issued and
outstanding.
3.6 AUTHORIZATION. The Company and the Acquisition Subsidiary have
full legal right, power and authority to enter into this Agreement and to carry
out the transactions contemplated by this Agreement. The execution, delivery
and performance by the Company and the Acquisition Subsidiary of this Agreement
and the other agreements and documents referred to herein and the actions
contemplated hereby and thereby have been duly and validly authorized by all
necessary corporate action, and this Agreement and such other agreements and
documents constitute valid and binding obligations of the Company and the
Acquisition Subsidiary, enforceable in accordance with their terms, subject to
(i) general principles of equity, regardless of whether enforcement is sought in
a proceeding in equity or at law, and (ii) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium, receivership or other similar
laws relating to or affecting creditors' rights generally.
3.7 FINANCIAL STATEMENTS AND ABSENCE OF CHANGES. The balance sheets
as of July 31, 1998, and the income statements and statements of cash flows for
the fiscal years then ended and the balance sheets as of July 31, 1998, and the
income statements and statements of cash flows for July 31, 1998 of the Company
(the "FINANCIAL STATEMENTS") have been provided to Xxxxx. Each of the Financial
Statements is true, complete and correct and fairly presents (including, but not
limited to, the inclusion of all adjustments with respect to interim periods
which are necessary to present fairly the financial condition and assets and
liabilities or the results of operations of the Company) the financial condition
and assets and liabilities or the results of operations of the Company as of the
dates and for the periods indicated. The Financial Statements were prepared in
accordance with generally accepted accounting principles consistently applied.
Except as reflected in the Exhibits attached hereto or the Financial Statements,
the Company has no debts, obligations, guaranties of obligations of others or
liabilities (contingent or otherwise) that would be required to be disclosed in
financial statements prepared in accordance with generally accepted accounting
principles. Since July 31, 1998, there have been no adverse changes to the
business, financial condition, results of operations or prospects of the Company
from that described and reflected in the Financial Statements as of that date.
Any financial statements prepared with respect to the Company subsequent to the
date hereof shall be promptly provided to Xxxxx and shall constitute Financial
Statements for purposes hereof.
3.8 LIABILITIES. Except as and to the extent reflected or reserved
against in the Financial Statements or disclosed in the Exhibits attached
hereto, and except for any costs of this transaction (including legal and
accounting fees) and tax liabilities arising solely as a direct consequence of
the taxation of the transactions contemplated by this Agreement and for
liabilities permitted by this Agreement, the Company had no liabilities or
obligations as of the dates thereof, secured or unsecured (whether accrued,
absolute, contingent or otherwise) including, without limitation, tax
liabilities due or to become due, and the Company has not incurred, nor will it
incur, any liabilities or obligations since the date of the most recent of the
Financial Statements and the Company has no obligations or liabilities, whether
direct or indirect, joint or several, absolute or contingent, matured or
unmatured, secured or unsecured,
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which could be affected by the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement or which could
affect the same.
3.9 CONTRACTS. Neither the Company nor the Acquisition Subsidiary is
a party to or bound by, and neither has any liability with respect to, any of
the following (hereinafter, any of the following are referred to collectively as
the "CONTRACTS" and individually as a "CONTRACT"):
(a) contract for the purchase or sale of services, equipment,
inventory, materials, supplies, or any capital item or items, or supply
agreements with the government or any agency thereof;
(b) collective bargaining agreement or other agreement with any
labor union or labor organization or any employment, consulting, severance,
bonus, deferred compensation or similar agreement;
(c) agreement, indenture or other instrument relating to the
borrowing of money or guaranty of any obligation for the borrowing of money;
(d) tenancy, lease, license or similar agreement relating to
property;
(e) license, lease or other agreement to provide, acquire or use
telecommunications or other services or equipment of any kind;
(f) any insurance policies naming the Company or the Acquisition
Subsidiary as an insured or beneficiary or as a loss payee, or for which the
Company has paid all or part of the premium;
(g) any instrument or agreement relating to indebtedness by way
of lease-purchase arrangements, conditional sale, guarantee or other
undertakings on which others rely in extending credit, any joint venture
agreements or any chattel mortgages or other security arrangements;
(h) confidentiality, secrecy, standstill or noncompete agreement
to which the Company is bound or which is in its favor;
(i) any agreement or contract with, or any obligation to or
from, an Affiliate, a shareholder or any Affiliate of a shareholder. For
purposes of this Agreement, "AFFILIATE" shall mean: any person or entity (i)
that directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, the person or entity involved
including, without limitation, officers and directors, (ii) that directly or
beneficially owns or holds 5% or more of any equity interest in the person or
entity involved, or (iii) 5% or more of whose voting securities (or in the case
of an entity which is not a corporation, 5% or more of any equity interest) is
owned directly or beneficially by the person or entity involved. As used
herein, the term "CONTROL" shall mean possession, directly or indirectly, of the
power to
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direct or cause the direction of the management or policies of a person or
entity, whether through ownership of securities, by contract or otherwise; or
(j) any other plans, agreements, contracts, powers of attorney,
bids or proposals, whether written or oral.
3.10 LITIGATION AND COMPLIANCE. There are no pending or threatened
claims, investigations, lawsuits or administrative proceedings (including
environmental) by or against the Company or the Acquisition Subsidiary or
involving the Company Stock. The Company and the Acquisition Subsidiary are in
compliance with all applicable laws and regulations and administrative orders
and their Articles (of Certificate) of Incorporation and Bylaws. There is no
order, writ, injunction or decree relating to or affecting the business of the
Company or the Acquisition Subsidiary or the transactions contemplated by this
Agreement.
3.11 NON-CONTRAVENTION. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
result in the breach of any term or provision of, constitute a default under, or
accelerate or augment the performance otherwise required under, any provision of
the Articles (or Certificate) of Incorporation or Bylaws of the Company or the
Acquisition Subsidiary or, as of the time of Closing, any agreement (including,
without limitation, any loan agreement or promissory note), indenture,
instrument, order, law or regulation to which the Company or the Acquisition
Subsidiary is a party or by which either is bound, or will result in the
creation of any lien or encumbrance upon any property of the Company, the
Acquisition Subsidiary or the Company Stock.
3.12 LICENSES, PERMITS AND REQUIRED CONSENTS. The Company has all
required franchises, tariffs, licenses, ordinances, certifications, approvals,
authorizations and permits necessary to the conduct of its business as currently
conducted.
3.13 INSURANCE. The Company has no policies of insurance at the
present time.
3.14 EMPLOYEES AND EMPLOYEE BENEFIT PLANS. The Company has no
employees and neither the Company nor the Acquisition Subsidiary has any
employee benefit plans or arrangement including, but not limited to, any
employee benefit plan as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations thereunder
("ERISA"), whether or not subject to ERISA including, but not limited to, any
pension, profit sharing, stock bonus, deferred or supplemental compensation,
retirement, thrift, stock purchase or stock option plan, or any other
compensation, welfare, fringe benefit or retirement plan, program, policy,
course of conduct, understanding or arrangement of any kind whatsoever, whether
formal or informal, oral or written, which is or has been maintained for current
or former employees or agents of the Company and their beneficiaries and
dependents or which is or has been contributed to by the Company. For purposes
of this Section, the Company shall include all trades or businesses (whether or
not incorporated) which are a member of a group of which the Company is a member
and which are under common control within the meaning of Section 414 of the
Code.
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3.15 TAXES AND RETURNS. All federal, state, county and local, and all
foreign and other, income, franchise, excise, tariff, gross receipts, sales and
use, payroll, real and personal property and other taxes and governmental
charges, assessments and contributions for which the Company and the Acquisition
Subsidiary is or may be liable including, but not limited to, interest and
penalties ("TAXES"), required to be paid, collected or withheld with respect to
all open years have been paid or collected or withheld and remitted to the
appropriate governmental agency except for (i) any Taxes which the Company is
contesting in good faith which have been noted in the Financial Statements, (ii)
Taxes not yet payable which have been adequately provided for in the Financial
Statements, (iii) any Taxes which may be imposed as a sole and direct result of
the transactions contemplated by this Agreement, and (iv) Taxes set forth in
EXHIBIT 3.15 attached hereto. True, complete and correct returns (including,
without limitation, information returns and other material information) have
been timely filed by the Company with the appropriate governmental agency with
respect to all Taxes and the copies thereof which have been provided to Xxxxx
are true, accurate and complete. Such tax returns of the Company have not been
audited by the Internal Revenue Service. Neither the Company nor any group of
which the Company is now or ever was a member has filed or entered into any
election, consent or extension agreement that extends any applicable statute of
limitations or the time within which a return must be filed. Neither the
Company nor any group of which the Company is now or ever was a member is a
party to any action or proceeding pending or threatened by any governmental
authority for assessment or collection of Taxes, no unresolved claim for
assessment or collection of Taxes has been asserted, no audit or investigation
by any governmental authority is pending or threatened and no such matters are
under discussion with any governmental authority. No deficiencies for Taxes
have been claimed, proposed or assessed by any taxing or other governmental
authority. The Company has never been an "S" corporation under the Code.
3.16 CHANGES. Since July 31, 1998, there has not been:
(a) any damage, destruction, other casualty loss or other
occurrence that could, individually or in the aggregate, have an adverse effect
on the assets, business, condition or prospects of the Company;
(b) any disposition of any asset of the Company other than in
the ordinary course of business;
(c) any amendment, modification or termination of any existing,
or entering into any new, contract, agreement, lease, license, permit or
franchise that could, individually or in the aggregate, have an adverse effect
on the business, condition or prospects of the Company;
(d) any direct or indirect redemption, purchase or other
acquisition of, or any declaration, setting aside or payment of any dividend or
other distribution on or in respect of, any stock or other securities of the
Company;
(e) any changes in the accounting methods or practices followed
by the Company or any change in depreciation or amortization policies or rates;
or
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(f) any other adverse change in the assets, business, condition
or prospects of the Company.
3.17 LABOR MATTERS. Neither the Company nor the Acquisition
Subsidiary have any obligations, contingent or otherwise, under any employment
or consulting agreement, collective bargaining agreement or other contract with
a labor union or other labor or employee group. There are no efforts presently
being made or threatened by or on behalf of any labor union with respect to
employees of the Company or the Acquisition Subsidiary. The Company and the
Acquisition Subsidiary are in compliance with all applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and have not and are not engaged in any unfair labor practice;
no unfair labor practice complaint against the Company or the Acquisition
Subsidiary is pending or threatened before the National Labor Relations Board;
there is no labor strike, dispute, disturbance, slowdown or stoppage pending or
threatened against or involving the Company or the Acquisition Subsidiary; no
representation question exists respecting the employees of the Company or the
Acquisition Subsidiary; no grievance or internal or informal complaint which
might have an adverse effect upon the Company or the Acquisition Subsidiary
exists, and no arbitration proceeding arising out of or under any collective
bargaining agreement is pending and no claim therefor has been asserted; no
collective bargaining agreement is currently being negotiated by the Company or
the Acquisition Subsidiary; and neither the Company nor the Acquisition
Subsidiary has experienced any labor difficulty.
3.18 MINUTE AND STOCK BOOKS; RECORDS. The minute books of the Company
and the Acquisition Subsidiary made available to Xxxxx contain the records of
all meetings and other corporate actions of the shareholders and directors (and
committees thereof) of the Company and the Acquisition Subsidiary and accurately
and completely reflect all such actions. The Bylaws contained in or kept with
said minute books are true, complete and correct copies of the Bylaws of the
Company and the Acquisition Subsidiary and all amendments thereto duly adopted
and in force. All other records maintained by the Company and the Acquisition
Subsidiary including, but not limited to, records pertaining to bank accounts
accurately reflect the information presented therein.
3.19 DISCLOSURE. No representation, warranty or statement made by or
on behalf of the Company and the Acquisition Subsidiary in this Agreement
(including, but not limited to, the Exhibits attached hereto) or in the
certificates or other materials furnished or to be furnished to Xxxxx or its
representatives in connection with this Agreement and the transactions
contemplated hereby or thereby, contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact required to be
stated herein or therein or necessary to make the statements contained herein or
therein not misleading. All information and documents provided prior to the
date of this Agreement, and all information and documents subsequently provided,
to Xxxxx or its representatives by or on behalf of the Company and the
Acquisition Subsidiary are or contain, or will be or will contain as to
subsequently provided information or documents, true, accurate and complete
information with respect to the subject matter thereof and are, or will be as to
subsequently provided information or documents, fully responsive to any specific
request made by or on behalf of Xxxxx or its representatives. Prior to the
Closing, full
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disclosure shall have been made to Xxxxx of all material facts with respect to
the Company and its business, assets, operations, condition and prospects and
the transactions contemplated by this Agreement which a reasonable purchaser
would deem relevant. The Company shall promptly notify Xxxxx of any change or
event which could adversely affect the assets, operations, business, condition
or prospects of the Company.
3.20 BROKER'S OR FINDER'S FEE. No agent, broker, person or firm
acting on behalf of the Company or the Acquisition Subsidiary is, or will be,
entitled to any commission or broker's or finder's fees from any of the parties
hereto, or from any person controlling, controlled by or under common control
with any of the parties hereto, in connection with any of the transactions
contemplated herein.
3.21 SHAREHOLDER APPROVAL. No approval of the shareholders of the
Company is required under Nevada law for either the execution of this Agreement
or the consummation of the transactions contemplated by this Agreement.
3.22 SHAREHOLDER LIST. Attached hereto as EXHIBIT 3.22 is a list of
shareholders of the Company as provided by the Company's stock transfer agent.
ARTICLE IV
ADDITIONAL AGREEMENTS OF THE PARTIES
4.1 ORDINARY COURSE. The Company and the Acquisition Subsidiary
represent and warrant that prior to the Closing, without Patra's written
consent, they shall not: amend or propose to amend their Articles (or
Certificate) of Incorporation or Bylaws;
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(a) except for the issuance of Acquisition Subsidiary shares to
the Company upon organization, and the issuance of the 12,950,000 shares of the
Company Stock in exchange therefore, authorize for issuance, issue, grant, sell,
pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any
shares of, or any options, warrants, commitments, subscriptions or rights of any
kind to acquire or sell any shares of, the capital stock or other securities of
the Company or the Acquisition Subsidiary including, but not limited to, any
securities convertible into or exchangeable for shares of stock of any class of
the Company or the Acquisition Subsidiary;
(b) split, combine or reclassify any shares of its capital stock
or declare, pay or set aside any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, or redeem, purchase or otherwise acquire or offer to acquire any shares
of its capital stock or other securities;
(c) (i) create, incur or assume any short-term debt, long-term
debt or obligations in respect of capital leases; (ii) assume, guarantee,
endorse or otherwise become liable or responsible (whether directly, indirectly,
contingently or otherwise) for the obligations of any person or entity; (iii)
make any capital expenditures or make any loans, advances or capital
contributions to, or investments in, any other person or entity; (iv) acquire
the stock or assets of, or merge or consolidate with, any other person or
entity; or (v) incur any liability or obligation (absolute, accrued, contingent
or otherwise);
(d) directly or indirectly through any investment banker or
other representative or otherwise, solicit, entertain or negotiate with respect
to any inquiries or proposals from any person or entity relating to: (i) the
merger or consolidation of the Company or the Acquisition Subsidiary with any
person or entity, (ii) the direct or indirect acquisition by any person or
entity of any of the assets of the Company or the Acquisition Subsidiary, or
(iii) the acquisition of direct or indirect beneficial ownership or control of
the Company or the Acquisition Subsidiary or any securities thereof by any
person or entity;
(e) sell, transfer, mortgage, pledge or otherwise dispose of, or
encumber, any assets or properties;
(f) hire any officers, employees or agents;
(g) increase in any manner the compensation of any of its
officers, employees or agents;
(h) enter into or establish any employment, consulting,
retention, change in control, collective bargaining, bonus or other incentive
compensation, profit sharing, health or other welfare, stock option or other
equity, pension, retirement, vacation, severance, deferred compensation or other
compensation or benefit plan, policy, agreement, trust, fund or arrangement
with, for or in respect of, any shareholder, officer, director, other employee,
agent, consultant or Affiliate;
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(i) make any new elections with respect to Taxes or any changes
in current elections with respect to Taxes;
(j) compromise, settle, grant any waiver or release relating to
or otherwise adjust any litigation, claim or proceeding;
(k) take any action or omit to take any action, which action or
omission would result in a breach of any of the covenants, representations and
warranties of the Company set forth in this Agreement;
(l) enter into or amend any lease of, or agreement with respect
to, real property;
(m) take any action with respect to the indemnification of any
person or entity;
(n) change any accounting practices;
(o) agree, commit or arrange to do any of the foregoing.
4.2 ACCESS PRIOR TO CLOSING. Upon reasonable notice, the Company and
the Company's officers, agents and employees shall afford Xxxxx and its
representatives (including, without limitation, its independent public
accountants, attorneys and banks or other lenders' representatives) reasonable
access from the date hereof through the Closing to any and all of the premises,
properties, contracts, books, records, data and personnel of or relating to the
Company or its operations. The Company and the Company's officers, agents and
employees shall cooperate fully in connection with the foregoing.
4.3 REGULATORY AND OTHER AUTHORIZATIONS. The Company and the
Acquisition Subsidiary shall obtain or make, and/or shall cooperate fully in
obtaining or making, all governmental, regulatory and third-party approvals,
orders, qualifications, waivers, consents, filings, authorizations,
certifications or other actions necessary in order to consummate the
transactions contemplated hereby. The parties hereto will not take any action
that will have the effect of delaying, impairing or impeding the receipt of any
of the foregoing and will use their respective best efforts to secure the same
as promptly as possible.
4.4 FURTHER ASSURANCES. At any time and from time to time at or
after the Closing, the parties agree to cooperate with each other, to execute
and deliver such other documents, instruments of transfer or assignment, files,
books and records and do all such further acts and things as may be reasonably
required to carry out the transactions contemplated hereby.
4.5 DELIVERY. The parties shall cause the delivery of the respective
documents required to be delivered or caused to be delivered by them pursuant to
ARTICLE VI below.
4.6 INDEMNITY.
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(a) The representations and warranties made by the parties in
this Agreement, in the Exhibits attached hereto and in the certificates
delivered at the Closing, and all of the covenants of the parties in this
Agreement, shall survive the execution and delivery of this Agreement and the
Closing Date and shall expire on the second anniversary of the Closing Date.
Any claim for indemnification shall be effective only if notice of such claim is
given by the party claiming indemnification or other relief to the party against
whom such indemnification or other relief is claimed on or before the second
anniversary of the Closing Date.
(b) The Company and the Acquisition Subsidiary agree to
indemnify and hold Xxxxx and the Xxxxx Shareholders harmless, from and after
the Closing Date, against and in respect of all matters in connection with any
losses, liabilities, costs or damages (including reasonable attorneys' fees)
incurred by Xxxxx and the Xxxxx Shareholders that result from any
misrepresentation or breach of the warranties by the Company or the Acquisition
Subsidiary in Article III, "Representations and Warranties of the Company and
the Acquisition Subsidiary," or any breach or nonfulfillment of any agreement or
covenant on the part of the Company contained in this Agreement, and all suits,
actions, proceedings, demands, judgments, costs and expenses incident to the
foregoing matters, including reasonable attorneys' fees.
(c) Xxxxx and the Xxxxx Shareholders, on a joint and several
basis, agree to indemnify and hold the Company and the Acquisition Subsidiary
harmless, from and after the Closing Date, against and in respect of all matters
in connection with any losses, liabilities or damages (including reasonable
attorneys' fees) incurred by the Company and the Acquisition Subsidiary
resulting from any misrepresentation or breach of the warranties of Xxxxx and
the Xxxxx Shareholders in Article II, "Representations and Warranties of Xxxxx
and the Xxxxx Shareholders," or any breach or nonfulfillment of any agreement or
covenant on the part of Xxxxx and the Xxxxx Shareholders contained in this
Agreement and all suits, actions, proceedings, demands, judgments, costs and
expenses incident to the foregoing matters, including reasonable attorneys'
fees. No claim for indemnification may be made under this Section 4.6(b) after
the second anniversary of the Closing Date.
(d) If the Company believes that a matter has occurred that
entitles it to indemnification under Section 4.6(c), or Xxxxx or the Xxxxx
Shareholders believes that a matter has occurred that entitles them to
indemnification under Section 4.6(b), Xxxxx, the Company, the Acquisition
Subsidiary or the Xxxxx Shareholders, as the case may be (the "INDEMNIFIED
PARTY"), shall give written notice to the party or parties against whom
indemnification is sought (each of whom is referred to herein as an
"INDEMNIFYING PARTY") describing such matter in reasonable detail. The
Indemnified Party shall be entitled to give such notice prior to the
establishment of the amount of its losses, liabilities, costs or damages, and to
supplement its claim from time to time thereafter by further notices as they are
established. Each Indemnifying Party shall send a written response to such
claim for indemnification within thirty (30) days after receipt of the claim
stating its acceptance or objection to the indemnification claim, and explaining
its position in respect thereto in reasonable detail. If such Indemnifying
Party does not timely so respond, it will be deemed to have accepted the
Indemnified Party's indemnification claim as specified in the notice given by
the Indemnified Party. If the Indemnifying Party gives a timely objection
notice, then the parties will negotiate in good faith to attempt to resolve the
dispute, and upon the
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expiration of an additional thirty (30) day period from the date of the
objection notice or such longer period as to which the Indemnified and
Indemnifying Parties may agree, any such dispute shall be submitted to
arbitration in New York City, New York to a member of the American Arbitration
Association mutually appointed by the Indemnified Party and Indemnifying Party
(or, in the event the Indemnified Party and Indemnifying Party cannot agree on a
single such member, to a panel of three members of such Association selected in
accordance with the rules of such Association), who shall promptly arbitrate
such dispute in accordance with the rules of such Association and report to the
parties upon such disputed items, and such report shall be final, binding and
conclusive on the parties. Judgment upon the award by the arbitrator(s) may be
entered in any court having jurisdiction. The prevailing party in any such
arbitration shall be entitled to recover from, and have paid by, the other party
hereto all fees and disbursements of such arbitrator or arbitrators. For this
purpose, a party shall be deemed to be the prevailing party only if such party
(A)(i) receives an award or judgment in such arbitration and/or litigation for
more than fifty percent (50%) of the disputed amount involved in such matter, or
(ii) is ordered to pay the other party less than fifty percent (50%) of the
disputed amount involved in such matter or (B)(i) succeeds in having imposed a
material equitable remedy on the other party (such as an injunction or order
compelling specific performance), or (ii) succeeds in defeating the other
party's request for such an equitable remedy.
(e) If any third person asserts a claim against an Indemnified
Party in connection with the matter involved in such claim, the Indemnified
Party shall promptly (but in no event later than ten (10) days prior to the time
at which an answer or other responsive pleading or notice with respect to the
claim is required) notify the Indemnifying Party of such claim. The
Indemnifying Party shall have the right, at its election, to take over the
defense or settlement of such claim by giving prompt notice to the Indemnified
Party that it will do so, such election to be made and notice given in any event
at least five (5) days prior to the time at which an answer or other responsive
pleading or notice with respect thereto is required. If the Indemnifying Party
makes such election, the Indemnifying Party may conduct the defense of such
claim through counsel of its choosing (subject to the Indemnified Party's
approval, not to be unreasonably withheld), will be responsible for the expenses
of such defense, and shall be bound by the results of its defense or settlement
of the claim to the extent it produces damage or loss to the Indemnified Party.
The Indemnifying Party shall not settle such claims without prior notice to and
consultation with the Indemnified Party, and no such settlement involving any
injunction or material and adverse effect on the Indemnified Party may be agreed
to without its consent. As long as the Indemnifying Party is diligently
contesting any such claim in good faith, the Indemnified Party shall not pay or
settle any such claim. If the Indemnifying Party does not make such election,
or having made such election does not proceed diligently to defend such claim
prior to the time at which an answer or other responsive pleading or notice with
respect thereto is required, or does not continue diligently to contest such
claim, then the Indemnified Party may take over defense and proceed to handle
such claim in its exclusive discretion, and the Indemnifying Party shall be
bound by any defense or settlement that the Indemnified Party may make in good
faith with respect to such claim. The parties agree to cooperate in defending
such third party claims, and the defending party shall have access to records,
information and personnel in control of the other part which are pertinent to
the defense thereof.
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(f) The parties understand that this Section 4.6 requires that
all disputed claims shall be submitted to arbitration in accordance with Section
4.6(d).
4.7 CONFIDENTIALITY.
(a) Except as contemplated by this Agreement, as required by law
or otherwise expressly consented to in writing by Xxxxx and the Company, all
information or documents furnished hereunder by any party shall be kept strictly
confidential by the party or parties to whom furnished at all times prior to the
Closing Date, and in the event such transactions are not consummated, each shall
return to the other all documents furnished hereunder and copies thereof upon
request and shall continue to keep confidential all information furnished
hereunder and shall not thereafter use the same for its advantage.
Notwithstanding the foregoing, the Company may, at any time after the date of
this Agreement, file with the Securities and Exchange Commission (the
"COMMISSION") a Report on Form 8-K pursuant to the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), with respect to the transactions
contemplated by this Agreement. Xxxxx shall cooperate with the Company and
provide such information and documents as may be required in connection with any
such filings.
(b) In the event the Closing is not consummated, each party
hereto will return all documents obtained from the other party and will hold in
absolute confidence any information obtained from another party except to the
extent (i) such party is required to disclose such information by law or
regulation, (ii) disclosure of such information is necessary or desirable in
connection with the pursuit or defense of a claim, (iii) such information was
known by such party prior to such disclosure or was thereafter developed or
obtained by such party independent of such disclosure, or (iv) such information
becomes generally available to the public or is otherwise no longer
confidential. Prior to any disclosure of information pursuant to the exception
in clause (i) or (ii) of the preceding sentence, the party intending to disclose
the same shall so notify the party which provided the same in order that such
party may seek a protective order or other appropriate remedy should it choose
to do so.
4.8 SHAREHOLDER APPROVAL. As soon as practicable, the Board of
Directors of the Company will take all steps necessary, as the sole shareholder
of the Acquisition Subsidiary to approve the Plan of Merger and provide the
approval for such other purposes as may be necessary or desirable in connection
with effectuating the transactions contemplated hereby.
ARTICLE V
CONDITIONS TO CLOSING
5.1 CONDITIONS TO CLOSE OF THE COMPANY AND THE ACQUISITION
SUBSIDIARY. The obligations of the Company and the Acquisition Subsidiary under
this Agreement are subject to the satisfaction at or prior to the Closing of
each of the following conditions, but compliance with any or all of such
conditions may be waived, in writing, by the Company:
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(a) The representations and warranties of Xxxxx and the Xxxxx
Shareholders contained in this Agreement shall be true and correct in all
material respects on the date hereof and on the Closing Date;
(b) Xxxxx and the Xxxxx Shareholders shall have performed and
complied with all of the covenants and agreements in all material respects and
satisfied in all material respects the conditions required by this Agreement to
be performed or complied with or satisfied by Xxxxx and the Xxxxx Shareholders
at or prior to the Closing;
(c) All required governmental and regulatory approvals, consents
and/or waiting periods shall have been obtained;
(d) No action, suit or proceeding shall have been instituted or
threatened by any person or entity including, but not limited to, any
governmental agency or body to restrain or prevent the carrying out of the
transactions contemplated by this Agreement or that seeks other material relief
with respect to any of such transactions or that could, individually or in the
aggregate, have a material adverse effect on the business or prospects of Xxxxx.
On the Closing Date, there shall be no injunction, restraining order or decree
of any nature of any court or governmental agency or body in effect that
restrains or prohibits the consummation of the transactions contemplated by this
Agreement;
(e) The Plan of Merger shall have been duly approved by the
Xxxxx Shareholders pursuant to the Delaware Act;
(f) There shall not have occurred any material adverse change in
the assets, business, condition or prospects of Xxxxx; and
5.2 CONDITIONS TO CLOSE OF XXXXX AND THE XXXXX SHAREHOLDERS. The
obligations of Xxxxx and the Xxxxx Shareholders under this Agreement are subject
to the satisfaction at or prior to the Closing of each of the following
conditions, but compliance with any or all of such conditions may be waived, in
writing, by Xxxxx and the Xxxxx Shareholders:
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(a) The representations and warranties of the Company and the
Acquisition Subsidiary contained in this Agreement shall be true and correct in
all material respects on the date hereof and on the Closing Date;
(b) The Company and the Acquisition Subsidiary shall have
performed and complied with all the covenants and agreements in all material
respects and satisfied in all material respects the conditions required by this
Agreement to be performed or complied with or satisfied by it or them at or
prior to the Closing;
(c) All required governmental, regulatory and third-party
approvals or consents shall have been obtained;
(d) The Plan of Merger shall have been duly approved by the
Company as the sole shareholder of the Acquisition Subsidiary pursuant to the
Delaware Act;
(e) No action, suit or proceeding shall have been instituted or
threatened by any person or entity including, but not limited to, any
governmental agency or body to restrain or prevent the carrying out of the
transactions contemplated by this Agreement or that seeks other material relief
with respect to any of such transactions or that could, individually or in the
aggregate, have a material adverse effect on the business or prospects of the
Company. On the Closing Date, there shall be no injunction, restraining order
or decree of any nature of any court or governmental agency or body in effect
that restrains or prohibits the consummation of the transactions contemplated by
this Agreement;
(f) There shall not have occurred any material adverse change in
the assets, business, condition or prospects of the Company; and
ARTICLE VI
THE CLOSING
6.1 DELIVERIES BY THE COMPANY AND THE ACQUISITION SUBSIDIARY. At the
Closing, Xxxxx shall receive from the Company and/or the Acquisition Subsidiary
the following:
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(a) Certificates of Company Stock representing the Merger
Consideration;
(b) Certificate of good standing or existence in each of the
states in which the Company and the Acquisition Subsidiary is incorporated or
qualified stating that the Company is a validly existing corporation in good
standing;
(c) Copies of duly adopted resolutions of the Board of Directors
of the Company and the Acquisition Subsidiary approving the execution, delivery
and performance of this Agreement and the other agreements and instruments
contemplated hereby and by the Company as the sole shareholder of the
Acquisition Subsidiary approving the Plan of Merger, certified by the Secretary
of the Acquisition Subsidiary;
(d) The resignations of any officers or directors of the
Acquisition Subsidiary; and
(e) Such other documents and instruments as Xxxxx may reasonably
request.
6.2 DELIVERIES BY XXXXX AND THE XXXXX SHAREHOLDERS. At the Closing,
the Company and/or the Acquisition Subsidiary shall receive from Xxxxx and/or
the Xxxxx Shareholders the following:
(a) Certificate of existence from the Secretary of State of the
State of Delaware stating that Xxxxx is a validly existing corporation in good
standing;
(b) Copies of duly adopted resolutions of the Board of Directors
and Shareholders of Xxxxx approving the execution, delivery and performance of
this Agreement, certified by its Secretary; and
ARTICLE VII
TERMINATION
7.1 TERMINATION. Notwithstanding anything in this Agreement to the
contrary, this Agreement may be terminated only by the mutual written consent of
Xxxxx and the Company.
7.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement pursuant to Section 7.1 of this Agreement, this Agreement shall
thereafter become void and have no effect, and without any liability on the part
of any party or its shareholders, directors or officers in respect thereof,
except as otherwise provided in this Agreement and except that
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nothing herein will relieve any party from liability for any breach of this
Agreement. In addition, all confidential information exchanged by the parties
shall be promptly returned to the proper party.
ARTICLE VIII
MISCELLANEOUS
8.1 EXPENSES. Each party hereto shall bear their or its own
respective expenses, fees and commissions (including, but not limited to, all
compensation and expenses of counsel, financial advisors, brokers, consultants,
actuaries and accountants) incurred in connection with the preparation,
negotiation and execution of this Agreement and consummation of the transactions
contemplated hereby.
8.2 PUBLIC DISCLOSURE. No press release or other public announcement
or communication will be made or caused to be made concerning the terms and
conditions of this Agreement unless specifically approved in advance by Xxxxx
and the Company. However, the parties acknowledge that such a press release or
public announcement is necessary under applicable law and no party shall
unreasonably withhold its approval from such a press release.
8.3 GOVERNING LAW AND CONSENT TO JURISDICTION. This Agreement shall
be deemed to be made in, and in all respects shall be interpreted, construed and
governed by and in accordance with the internal laws of, the State of Delaware
(except to the extent the Nevada Act may control with respect to matters
concerning the Company as part of the Merger), and the parties hereto consent to
the jurisdiction of the courts of or in the State of Delaware with respect to
any dispute, controversy or other matter relating to or arising out of this
Agreement or the transactions contemplated hereby after submission to
arbitration as outlined in Section 4.6(d).
8.4 NOTICES. Any notices or other communications required under this
Agreement shall be in writing, shall be deemed to have been given when delivered
in person, by telex or facsimile, when delivered to a recognized next business
day courier, or, if mailed, when deposited in the United States first class
mail, registered or certified, return receipt requested, with proper postage
prepaid, addressed as follows or to such other address as notice shall have been
given pursuant hereto:
If to the Company or the Acquisition Subsidiary:
Elligent Consulting Group, Inc.
Attn: Xxxxx X. Xxxxxxxx
0 Xxxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000)000-0000
With a copy to:
Xxxxxxxxx X. Xxxxxxxx, III, Esq.
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Xxxxxxx Lang, P.A.
Renaissance Xxx
Xxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
If to Xxxxx or the Xxxxx Shareholders:
Xxxxx Capital Limited
Attn: Xxxxxxx Xxxxxxxx
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Moses & Singer LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
8.5 ASSIGNMENT. This Agreement may not be assigned, by operation of
law or otherwise to any other person or entity.
8.6 SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
8.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
8.8 AMENDMENT. This Agreement may not be amended except by a writing
signed by the party to be charged.
8.9 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.
8.10 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns.
8.11 SURVIVAL. Subject to the express limitations specified in this
Agreement, the covenants, agreements, indemnities, representations and
warranties of Xxxxx, the Company, the Acquisition Subsidiary and the Xxxxx
Shareholders made in or pursuant to this Agreement shall survive the Closing,
notwithstanding any investigation made or information obtained by or on behalf
of Xxxxx, the Company, the Acquisition Subsidiary or the Xxxxx Shareholders.
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8.12 SEVERABILITY. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
8.13 THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the transactions
contemplated hereby shall create any rights in, or be deemed to have been
executed for the benefit of, any person or entity that is not a party hereto, a
successor or permitted assign of such a party or a person or entity entitled to
indemnification hereunder.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
XXXXX CAPITAL LIMITED ELLIGENT CONSULTING GROUP, INC.
By: /s/ XXXXXXX XXXXXXXX /s/ XXXXX X. XXXXXXXX
----------------------------- ----------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: President Title: President
XXXXX SHAREHOLDERS: XXXXX ACQUISITION, INC.
/s/ XXXXXXX XXXXXXXX /s/ XXXXX X. XXXXXXXX
-------------------------------- ----------------------------
For: XXXXX HOLDING, LLC Xxxxx X. Xxxxxxxx
President
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Exhibit 1.5
FORM OF TRANSMITTAL LETTER
LETTER OF TRANSMITTAL, WAIVER AND RELEASE
For submitting certificates representing
shares of stock of Xxxxx Capital Inc.
pursuant to the Agreement and Plan of Merger
dated as of August 26, 1998 (the "Merger Agreement")
and related Plan of Merger (the "Plan of Merger")
This Letter of Transmittal, Waiver and Release should be completed, signed and
submitted, together with your certificates representing shares of Xxxxx Capital,
Inc. common stock, to:
Elligent Consulting Group, Inc.
Attn: Xxxxx X. Xxxxxxxx
IMPORTANT: YOU ARE REQUESTED TO SIGN THIS DOCUMENT IN EACH OF THE PLACES
INDICATED BELOW.
In connection with the merger (the "Merger") of Xxxxx Acquisition, Inc., a
Delaware corporation and wholly owned subsidiary of Elligent Consulting Group,
Inc., a Nevada corporation ("Elligent"), with and into Xxxxx Capital, Inc., a
Delaware corporation ("Xxxxx"), and pursuant to the Merger Agreement and the
Plan of Merger, the undersigned encloses herewith and surrenders the following
certificate(s) (the "Certificates"), representing shares of Xxxxx common stock
(the "Shares"):
NAME & ADDRESS OF XXXXX CERTIFICATE(S) ENCLOSED
REGISTERED OWNER
CERTIFICATE NO. NUMBER OF SHARES
OF COMMON STOCK
-------------------------- ----------------- ------------------
-------------------------- ----------------- ------------------
-------------------------- ----------------- ------------------
AUTHORITY, OWNERSHIP AND FURTHER ASSURANCES
The undersigned hereby warrants that the undersigned has full power and
authority to submit, sell, assign and transfer the Certificates and the Shares
and that the Shares are owned by
the undersigned and are free and clear of all liens, encumbrances, security
interests, mortgages, pledges, charges, agreements, rights, options, warrants,
restrictions and claims. The undersigned will, upon request, execute any
additional documents reasonably necessary or desirable to complete the transfer
of the Shares and accomplish the matters contemplated hereby.
PAYMENT OF MERGER CONSIDERATION
You hereby are authorized and instructed to prepare in the name and deliver
to the address of the undersigned set forth above, or to such other address as
requested by the undersigned in writing, shares of Common Stock of Elligent
("Elligent Shares") in accordance with the terms and conditions of the Merger
Agreement and the Plan of Merger in exchange for the Shares evidenced by the
enclosed Certificates.
RELEASE
For valuable consideration, the receipt of which hereby is acknowledged,
the undersigned hereby releases and forever discharges Xxxxx, its affiliates,
officers, directors and their respective heirs, personal representatives,
successors and assigns, from any and all claims, damages, losses, liabilities,
demands, charges, suits, penalties, actions and causes of action, whether
accrued, absolute, contingent, known or unknown, which the undersigned may now
or hereafter have arising out of or relating to (i) the formation, financing,
management or operations of Xxxxx, (ii) the issuance, holding or repurchase of
securities of Xxxxx, or (iii) other than with respect to any existing right to
indemnification by Xxxxx, the undersigned's status as a shareholder, officer,
director, and/or employee of Xxxxx. The foregoing release shall be binding upon
the undersigned and the undersigned's heirs, personal representatives,
successors and assigns.
CERTIFICATION
By signing below, under the penalties of perjury, the undersigned certifies
(1) that the Social Security Number or Taxpayer Identification Number set forth
below is the undersigned's correct Social Security Number or Taxpayer
Identification Number, (2) that all other information provided herein is true
and accurate, and (3) that the undersigned is not subject to backup withholding
because (a) the undersigned has not been notified that the undersigned is
subject to backup withholding as a result of a failure to report all interest or
dividends, or (b) the Internal Revenue Service has notified the undersigned that
the undersigned is no longer subject to backup withholding. (The undersigned
must cross out subpart (3) of the certification if the Internal Revenue Service
has notified the undersigned that the undersigned is subject to backup
withholding due to the underreporting of dividends or interest on tax returns
and notice has not been received from the Internal Revenue Service advising that
backup withholding has terminated.) NOTE: FAILURE TO COMPLETE AND RETURN THIS
INFORMATION WILL RESULT IN BACKUP WITHHOLDING ON PAYMENTS DUE TO YOU.
-2-
IMPORTANT: THIS LETTER OF TRANSMITTAL AND ALL OTHER DOCUMENTS AND
INSTRUMENTS REQUIRED HEREBY SHOULD BE DELIVERED TO ELLIGENT CONSULTING GROUP,
INC. IN CARE OF XXXXX X. XXXXXXXX AT THE ADDRESS SET FORTH ABOVE. UNLESS AND
UNTIL ANY OUTSTANDING CERTIFICATE FORMERLY EVIDENCING THE SHARES IS SO
DELIVERED, NO ELLIGENT SHARES WILL BE DELIVERED TO THE HOLDER OF XXXXX SHARES.
The undersigned has carefully reviewed this Letter of Transmittal and
Release and understands its contents and the significance thereof and has
consulted with counsel with regard thereto. All authority herein conferred
shall survive the death or incapacity of the undersigned, and all obligations of
the undersigned hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
________________________ Dated as of _____________________, 1998.
(Signature)
Name:___________________ All Registered Owners must sign exactly
as name(s) appear on Certificate(s). If
Phone No.:______________ anyone other than the Registered Owner or
if an attorney, personal representative,
Social Security or trustee, custodian, guardian, partner,
Taxpayer I.D. No.: other fiduciary or officer of a corporation
______________________ signs the Letter of Transmittal, proper
evidence of authority to act, satisfactory to
___________, must be submitted herewith.
-3-
EXHIBIT 2.4
XXXXX CAPITAL, LIMITED SHAREHOLDERS
Xxxxx Capital Shareholder Share Holdings
------------------------------------------ --------------
Xxxxx Holdings, LLC 844
Xxxxxxx Xxxxxxxx 29
ANIN Development LLC 55
Xxxxx Xxxxxxxx Family Limited 17
Partnership
Xxxxx Xxxxxxxx 30
Gennaro Vendome Family Limited 8
Partnership
Gennaro Vendome 17
Total Issued and Outstanding 1000
Treasury Stock 0
Total Authorized 1000
Elligent Shares
to be issued
under
Xxxxx Capital Shareholder Agreement
------------------------------------------------------ --------------
Xxxxx Holdings, LLC 10,000,000
Xxxxxxx Xxxxxxxx 350,000
ANIN Development LLC 650,000
Xxxxx Xxxxxxxx Family Limited Partnership 200,000
Xxxxx Xxxxxxxx 350,000
Gennaro Vendome Family Limited Partnership 100,000
Gennaro Vendome 200,000
Total Elligent Shares to be issued to Xxxxx 11,850,000
Capital Shareholders
Total Elligent Shares to be issued 12,950,000
EXHIBIT 3.15
TAXES
None.
EXHIBIT 3.22
SHAREHOLDER LIST OF
ELLIGENT CONSULTING GROUP, INC.
Omitted.
