AGREEMENT AND PLAN OF MERGER
BY AND AMONG
HIGHWAY ONE-OWEB, INC.,
XXXXXXX AUDIO, INC.
AND
XXXXXXX AUDIO CORPORATION OF AMERICA
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of July 7, 2003 (the "Agreement"),
among HIGHWAY ONE-OWEB, INC., a Utah corporation ("Highway One"), XXXXXXX
AUDIO, INC., a Delaware corporation ("Newco"), and XXXXXXX AUDIO CORPORATION
OF AMERICA, a New Jersey corporation ("Xxxxxxx Audio").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Xxxxxxx Xxx, Xxxxx and
Xxxxxxx Audio deem it desirable and in the best interests of their respective
corporations and stockholders that Newco merge with and into Xxxxxxx Audio
(the "Merger") in accordance with this Agreement and the applicable laws of
the States of New Jersey and Delaware;
WHEREAS, Newco is a wholly owned subsidiary of Highway One; and
WHEREAS, for federal income tax purposes, it is intended that the Merger
qualify as a reorganization under Section 368(a)(1)(A) and 368(a)(2)(E) of the
Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
MERGER OF NEWCO WITH AND INTO XXXXXXX AUDIO
1.1 Merger and Surviving Corporation.
(a) Pursuant to the applicable laws of the States of Delaware and New
Jersey, Newco shall merge with and into Xxxxxxx Audio, and Xxxxxxx Audio shall
be the surviving corporation after the Merger (the "Surviving Corporation")
and shall continue to exist under the provisions of the New Jersey Business
Corporation Act ("NJBCA"). The name of the Surviving Corporation shall be
Xxxxxxx Audio Corporation of America. The separate existence of Newco shall
cease upon the Effective Date (as defined below).
(b) The Certificate of Incorporation of Xxxxxxx Audio shall from and
after the Effective Date, be the Certificate of Incorporation of the Surviving
Corporation, until amended in accordance with the NJBCA.
(c) The By-Laws of Xxxxxxx Audio shall, from and after the Effective Date, be
the By-Laws of the Surviving Corporation, until altered or amended in
accordance with the NJBCA.
1.2 Effectiveness of the Merger. In the event that all of the conditions
precedent to the obligations of each of the parties hereto as hereinafter set
forth shall either have been satisfied or waived, a Certificate of Merger
under the applicable provisions of the NJBCA (the "Merger Certificate"), shall
be delivered for filing on the Closing Date (as defined below) to the
Secretary of State of New Jersey and shall become effective upon the
acceptance of the filing of such Merger Certificate by said Secretary of
State, which date shall be the "Effective Date" for purposes of this Agreement
and which date shall be as soon as practicable after the Closing.
1.3 Conversion of Newco Stock and Xxxxxxx Audio Stock. The manner and
basis of converting the shares of capital stock of Newco and Xxxxxxx Audio
shall be as follows:
(a) Each of the issued and outstanding shares of common stock of Newco
(the "Newco Stock"), issued and outstanding at the Effective Date and all
rights with respect thereto shall, by reason of and simultaneous with the
Merger and without any action on the part of Newco, be converted into and
shall become one share of the Surviving Corporation's no par value common
stock.
(b) (i) Each share of no par value common stock of Xxxxxxx Audio,
(the "Xxxxxxx Audio Common Shares") issued and outstanding at the Effective
Date shall by reason of and simultaneous with the Merger and without any
action on the part of the holder thereof except with respect to any Dissenting
Shares (as defined in Section 1.3(b)(ii) below) be canceled and converted into
the right to receive 51,960 shares of Highway One common stock, par value
$0.001 per share (the "Highway One Common Shares").
(ii) Any Dissenting Shares owned by the holders of Xxxxxxx Audio
Common Shares as of the Closing Date shall not be converted into or represent
the right to receive shares and shall be entitled only to receive payment for
such Dissenting Shares in accordance with applicable provisions of the NJBCA,
provided that such holder shall comply with each of the requirements and
procedures set forth therein. If any holder of Dissenting Shares shall
effectively withdraw or lose his rights as a dissenting shareholder under such
provisions, then such Dissenting Shares shall be converted into the right to
receive Xxxxxxx Audio Shares in accordance with the provisions of this Section
1.3. For purposes hereof, "Dissenting Shares" shall mean any Xxxxxxx Audio
Shares issued the founding Xxxxxxx Audio shareholders or otherwise subsequent
to the date hereof and outstanding as of the Closing Date as to which the
holder thereof has complied with each of the requirements and procedures for
dissenting shareholders set forth in the applicable provisions of the NJBCA in
order to be entitled to receive payment for such shares.
(iii) Immediately following the Effective Date, each holder of
certificates evidencing Xxxxxxx Audio Common Shares (other than any Dissenting
Shares), upon the surrender of such certificates to Highway One, properly
endorsed, shall be entitled to receive a certificate registered in the name of
such holder for a like number of Highway One Common Shares pursuant to the
conversion formula set forth in Section 1.3(b)(i).
(iv) All rights with respect to Xxxxxxx AudioShares shall cease and
terminate at the Effective Date, notwithstanding that any certificates
evidencing said shares shall not have been surrendered to Highway One, and the
holders of said shares shall have no interest in or claims against the
Surviving Corporation, except for the right to receive Highway One Common
Shares in accordance with the terms hereof.
1.4 Effect of Merger.
(a) Except as otherwise specifically set forth herein, the
identity, existence, purposes, powers, franchises, rights and immunities of
Xxxxxxx Audio shall continue unaffected and unimpaired by the Merger, and the
corporate identity, existence, purposes, powers, franchises and immunities of
Newco shall be merged into Xxxxxxx Audio, and Xxxxxxx Audio, as the Surviving
Corporation, shall be fully vested therewith. The separate existence and
corporate organization of Newco (except insofar as may be continued by
applicable law) shall cease as of the Effective Date.
(b) At the Effective Date:
(i) the rights, privileges, goodwill and franchises and all
property, real, personal and mixed and all debts, liabilities, obligations and
penalties due on whatever account and all other things in action belonging or
accruing to Newco shall be bargained, conveyed, granted, confirmed,
transferred, assigned and set over to and vested in the Surviving Corporation,
by operation of law and without further act or deed, and all property and
rights and liabilities, and all and every other interest of Newco shall be as
effectively the property, rights and interests and liabilities of the
Surviving Corporation, as they were of Newco; and
(ii) no action or proceeding, whether civil or criminal, pending
at the Effective Date by or against either Xxxxxxx Audio or Newco, or any
stockholder, officer or director thereof, shall xxxxx or be discontinued by
the Merger, but may be enforced, prosecuted, settled or compromised as if the
Merger had not occurred, or the Surviving Corporation may be substituted in
such action or proceeding in place of Xxxxxxx Audio, or Newco, as the case may
be; and
(iii) all rights of employees and creditors and all liens upon the
property of Xxxxxxx Audio and Newco shall be preserved unimpaired, limited in
lien to the property affected by such liens at the Effective Date, and all of
the debts, liabilities, obligations and duties of Xxxxxxx Audio and Newco
shall attach to the Surviving Corporation, and shall be enforceable against
the Surviving Corporation to the same extent as if all such debts,
liabilities, obligations and duties had been incurred or contracted by the
Surviving Corporation.
1.5 Directors and Officers of the Surviving Corporation. The officers
and members of the Board of Directors of the Surviving Corporation shall
consist of those persons who were officers and Directors of Xxxxxxx Audio as
of the Closing Date who shall hold office from and after the Effective Date,
in accordance with the By-Laws of the Surviving Corporation until the next
annual meeting of directors or stockholders as the case may be and until their
respective successors shall have been duly elected and qualified.
ARTICLE II
CONDITIONS PRECEDENT TO THE MERGER; FURTHER ASSURANCES
2.1 Conditions Precedent ot the Merger. As conditions precedent to the
Closing of the Merger:
(a) Xxxxxxx Audio Stockholders holding not less than 80% of the
outstanding Highway One Shares as of the date hereof shall have approved the
Merger and the transactions contemplated by this Agreement; and
(b) In consideration of the benefits that will accrue to him as a
result of the Merger, the sufficiency of which is acknowledged, Highway One's
current sole director and executive officer, Xxxxxxxx Xxxxxx, shall deliver to
Highway One's transfer agent, Colonial Stock Transfer, 19,750,000 shares of
Highway One Common Stock that are registered in his name for cancellation,
leaving Xx. Xxxxxx with a total of 250,000 shares of Highway One's common
stock after such cancellation.
2.2 Further Assurances. At the Closing and from time to time
thereafter, the parties shall execute such additional instruments and take
such other action as may be necessary to accomplish the intent of this
Agreement.
2.3 Authority to Change Name. As soon after the Closing as is
practicable, Highway One shall amend its Articles of Incorporation to change
its name to "Michelex Corporation."
2.4 Resignations of Present Directors and Executive Officers and
Designation of New Directors and Executive Officers. On Closing, the present
sole director and executive officer of Highway One shall designate the
following directors and executive officers nominated by Xxxxxxx Audio to serve
in their place and stead, to serve until the next respective annual meetings
of the stockholders and the Board of Directors of Highway One, and until their
respective successors shall be elected and qualified or until their respective
prior resignations or terminations, and then, the current sole director and
executive officer shall resign: Xxxxxxx Xxxxxxxxx, President and director;
Xxxxxx Xxxxxxxxx, Vice President, Treasurer and director; and Xxxxxx Xxxxxx,
Secretary and director.
2.8 Assets and Liabilities of Highway One at Closing. Highway One shall
have no material assets and no material liabilities at Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Highway One. Highway One represents
and warrants to Xxxxxxx Audio, as follows:
(a) Power and Authority. Highway One has the corporate power and
authority, to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by the Board
of Directors of Highway One and no other corporate proceedings on the part of
Highway One are necessary to authorize this Agreement and the transactions
contemplated hereby. No stockholder approval of the Agreement is required by
the Utah Revised Business Corporation Act.
(b) Highway One Financial Statements. Highway One has heretofore
delivered to Xxxxxxx Audio its audited financial statements for the years
ended December 31, 2002 and 2001 (the "2002 Statements"). As of the date of
the 2002 Statements, the financial statements did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) No Material Adverse Effect. Except as set forth in Schedule 3.1(c),
since December 31, 2002, there has not been any material adverse change in the
business, operations, properties, assets, condition, financial or otherwise,
or prospects of Highway One.
(d) Due Organization; Power; Qualification; Subsidiaries and Affiliates, Etc.
(i) Highway One is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Utah and has the corporate power
to own its property and to carry on its business as now conducted. The nature
of the business now conducted by Highway One, the character of the property
owned by it, or any other state of facts does not require Highway One to be
qualified to do business as a foreign corporation in any jurisdiction.
(ii) Highway One has no subsidiaries (as that term is used in the
regulations promulgated under the Securities Act).
(e) Capitalization.
(i) The total authorized capital stock of Highway One consists of
100,000,000 Highway One Common Shares having a par value of one mill
($0.001) per share. As of the date hereof, 22,348,000 Highway One Common
Shares represent all of the issued and outstanding stock of Highway One. All
of the outstanding Highway One Shares have been, and all of the outstanding
Highway One Shares as of the Closing Date will be, duly authorized and validly
issued and are fully paid and non-assessable.
(ii) There are no present and on the Closing Date there will be
no outstanding subscriptions, options, warrants, contracts, calls, puts,
agreements, demands or other commitments or rights of any type to purchase or
acquire any securities of Highway One, nor are there outstanding securities of
Highway One which are convertible into or exchangeable for any shares of
capital stock of Highway One, and Highway One has no obligation of any kind to
issue any additional securities.
(f) Tax Matters.
(i) Highway One has filed or caused to be filed with the
appropriate federal, state, county, local and foreign governmental agencies or
instrumentalities, all tax returns and tax reports required to be filed, and
all taxes, assessments, fees and other government charges have been fully paid
when due (subject to any extensions filed on a timely basis).
(ii) There is not pending nor, to the best knowledge of Highway
One, is there any threatened federal, state or local tax audit of Highway One.
There is no agreement with any federal, state or local taxing authority by
Highway One that may affect the subsequent tax liabilities of Highway One.
(iii) Without limiting the foregoing: (a) the 2002 Statements
include adequate provisions for all taxes, assessments, fees, penalties and
governmental charges which have been or in the future may be assessed against
Highway One with respect to the period then ended and all periods prior
thereto; and (b) on the date hereof, Highway One is not liable for any taxes,
assessments, fees or governmental charges.
(h) No Conflict or Default; Enforceability; Corporate Records; Compliance
with Law. Neither the execution and delivery of this Agreement, nor
compliance with the terms and provisions hereof, including without limitation
the consummation of the transactions contemplated hereby, will violate any
statute, regulation or ordinance of any governmental authority, or conflict
with or result in the material breach of any term, condition or provision of
the Articles of Incorporation, Certificate of Incorporation, By-laws or other
charter documents of Highway One, nor of any agreement, deed, contract,
mortgage, indenture, writ, order, decree, legal obligation or instrument to
which Highway One is a party or by which it or any of its assets or properties
are or may be bound; or constitute a material default (or an event which, with
the lapse of time or the giving of notice, or both, would constitute a
material default) thereunder, nor result in the creation or imposition or any
lien, charge or encumbrance, or restriction of any nature whatsoever with
respect to any properties or assets of Highway One, nor give to others any
interest or rights, including rights of termination, acceleration or
cancellation in or with respect to any of the properties, assets, contracts or
business of Highway One. This Agreement and all other agreements and
documents delivered by Highway One in connection herewith have been duly
executed and delivered by Highway One and constitute the binding obligations
of Highway One enforceable in accordance with their respective terms. Highway
One has permitted Xxxxxxx Audio to examine Highway One's corporate minute and
stock records books. The corporate minute books contain the Articles of
Incorporation, Certificate of Incorporation, By-laws and other charter
documents of Highway One as in effect on the date hereof, contain a true and
complete record of all actions by and meetings of the directors (and
committees thereof) and stockholders of Highway One since the date of its
incorporation and accurately reflect all transactions referred to therein.
Highway One is not in violation of any outstanding arbitration award,
judgment, order or decree; or in violation of any statute, regulation or
ordinance ("Law"), including, but not limited to, any anti-discrimination,
hazardous and toxic substances, wage, hour, working condition, payroll
withholding, pension, building, zoning and tax Law. There have been no
allegations of or inquiries concerning any violations of Law by Highway One
since its inception.
(i) Party to Agreements. Highway One is not a party to any contract or other
arrangement other than this Agreement.
(j) Litigation. There are no actions, suits, investigations, or proceedings
pending, nor, to the knowledge of Highway One, threatened against Highway One,
the performance of the terms and conditions hereof, or the consummation of the
transactions contemplated hereby, in any court or by or before any
governmental body or agency, including without limitation any claim,
proceeding or litigation for the purpose of challenging, enjoining or
preventing the execution, delivery or consummation of this Agreement. Highway
One is not subject to any order, judgment, decree, stipulation or consent or
any agreement issued by any governmental body or agency.
(k) Securities Filings. The common stock of Highway One is listed on the
OTC Bulletin Board of the National Association of Securities Dealers. Highway
One has heretofore provided to Xxxxxxx Audio true and correct copies of its
annual report on Form 10-KSB for the year ended December 31, 2002, and its
quarterly reports on Form 10Q-SB dated June 30, 2002, September 30, 2002, and
March 31, 2003. All such reports are true, correct and accurate as of the
dates of filing and do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. No material adverse change in the business, financial
condition or operations of Highway One has occurred since the date of such
reports. Highway One will have on the Closing Date, and thereafter, made all
filings required to be made by Highway One with the Securities and Exchange
Commission (the "Commission") and any state securities authorities.
(l) Governmental and Other Approval. Highway One has all permits,
licenses, orders and approvals of all federal, state, local or foreign
governmental or regulatory bodies required for Highway One to conduct its
business as presently conducted. All such permits, licenses, orders and
approvals are in full force and effect and no suspension or cancellation of
any of them is threatened, and none of such permits, licenses, orders or
approvals will be affected by the consummation of the transactions
contemplated by this Agreement. No approval or authorization of or filing
with any governmental authority, including the Commission, or any other person
or entity on the part of Highway One is required as a condition to the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby other than the filing of any documents
contemplated by this Agreement.
(m) Accrued Compensation; Benefits. Highway One does not have any
outstanding liability for payment of wages, vacation pay (whether accrued or
otherwise), salaries, bonuses, pensions or contributions and does not have any
responsibility for providing medical insurance or medical benefits under any
labor or employment contract, whether oral or written, or pursuant to any law,
rule or regulation or by reason of any past practices with respect to its
current or former officers, directors or employees based upon or accruing with
respect to services of its present or former officers, directors or employees.
(n) Employee Benefit Plans. Highway One does not have, maintain or
contribute to and never has had, maintained or contributed to, any pension
plan, profit sharing plan or employee's savings plan, and is not otherwise
subject to any applicable provisions of the Employee Retirement Income
Security Act of 1974 ("ERISA").
(o) Material Contracts, Etc. With the exception of this Agreement,
Highway One is not a party to any contracts, commitments, leases, instruments,
agreements, licenses or permits, written or oral.
(p) Environmental. There are no environmental liens, actions or
proceedings, nor is there any cause for any such lien, action or proceeding
related to the business operations of Highway One. There are no substances or
conditions which may support a claim or cause of action against Highway One or
any of Highway One's current or former officers, directors, agents or
employees, whether by a governmental agency or body, private party or
individual, under any Law or Hazardous Materials Regulations. "Hazardous
Materials" means any oil or petrochemical products, PCB's, asbestos, urea
formaldehyde, flammable explosives, radioactive materials, solid or hazardous
wastes, chemicals, toxic substances or related materials, including, without
limitation, any substances defined as or included in the definition of
"hazardous substances," "hazardous wastes," "hazardous materials" or "toxic
substances" under any applicable federal or state laws or regulations.
"Hazardous Materials Regulations" means any regulations governing the use,
generation, handling, storage, treatment, disposal or release of hazardous
materials, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conversation and
Recovery Act and the Federal Water Pollution Control Act.
(q) The representation and warranties contained herein do not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein in light of the circumstances under
which they were made, not misleading.
(r) All representations and warranties by Highway One made herein and in
the Schedules attached hereto shall be true and correct in all material
respects when made.
3.2 Representations and Warranties of Xxxxxxx Audio. Xxxxxxx Audio
represents and warrants to Highway One as follows:
(a) Power and Authority. Xxxxxxx Audio has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by the Board
of Directors of Xxxxxxx Audio and ratified and approved by its stockholders,
and, no other corporate proceedings on the part of Xxxxxxx Audio are necessary
to authorize this Agreement and the transactions contemplated hereby.
(b) Xxxxxxx Audio Financial Statements. Xxxxxxx Audio has heretofore
delivered to Highway One its unaudited financial statements for the fiscal
year ended February 28, 2003 (the "Xxxxxxx Audio Financial Statements"). The
Xxxxxxx Audio Financial Statements did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(c) Due Organization; Power; Qualification; Subsidiaries and Affiliates,
Etc.
(i) Xxxxxxx Audio is a corporation duly organized, validly existing, and
in good standing under the laws of the State of New Jersey and has the
corporate power to own its property and to carry on its business as now
conducted. Xxxxxxx Audio is qualified to do business as a foreign corporation
in each jurisdiction where the failure to qualify would have a material
adverse effect on Xxxxxxx Audio.
(ii) Xxxxxxx Audio has no subsidiaries (as that term is used in
the regulations promulgated under the Securities Act).
(d) Capitalization.
(i) The total authorized capital stock of Xxxxxxx Audio consists
of 12,500,000 shares of capital stock, of which 10,000,000 are no par value
Xxxxxxx Audio Common Shares, 200 of which are issued and outstanding as of the
date hereof, and 2,500,000 shares are preferred stock, $0.001 par value. No
shares of preferred stock are issued or outstanding as of the date hereof.
All the outstanding Xxxxxxx Audio Shares have been duly authorized and validly
issued, and are fully paid and non-assessable.
(ii) There are no present, and on the Closing Date there will be
no outstanding options, warrants, convertible securities or rights which may
require Xxxxxxx Audio to issue additional shares of its capital stock.
(e) Financial Information: No Material Adverse Change.
(i) At the Closing, there will be no material liabilities,
absolute or contingent of Xxxxxxx Audio that were not shown or reserved
against on the balance sheet included in the Xxxxxxx Audio Financial
Statements.
(ii) Since December 31, 2002, Xxxxxxx Audio has not sold or
otherwise disposed of or encumbered any of the properties or assets reflected
on the Xxxxxxx Audio Financial Statements, or other assets owned or leased by
it, except in the ordinary course of business.
(f) Tax Matters.
(i) Xxxxxxx Audio has filed or caused to be filed with the appropriate
federal, state, county, local and foreign governmental agencies or
instrumentalities all tax returns and tax reports required to be filed, and
all taxes, assessments, fees and other governmental charges have been fully
paid when due (subject to any extensions filed on a timely basis).
(ii) There is not pending nor, to the best knowledge of Xxxxxxx Audio, is
there any threatened federal, state or local tax audit of Xxxxxxx Audio.
There is no agreement with any federal, state or local taxing authority that
may affect the subsequent tax liabilities of Xxxxxxx Audio.
(iii) Without limiting the foregoing: (a) the Xxxxxxx Audio Financial
Statements include adequate provisions for all taxes, assessments,
fees, penalties and governmental charges which have been or in the future may
be assessed against Xxxxxxx Audio with respect to the period then ended and
all periods prior thereto; and (b) Xxxxxxx Audio is not, on the date hereof,
liable for any taxes, assessments, fees or governmental charges.
(g) No Conflict or Default; Enforceability; Corporate Records; Compliance
with Law. Neither the execution and delivery of this Agreement, nor
compliance with the terms and provisions hereof, including without limitation
the consummation of the transactions contemplated hereby, will violate any
statute, regulation or ordinance of any governmental authority, or conflict
with or result in the material breach of any term, condition or provision of
the Certificate of Incorporation or By-laws of Xxxxxxx Audio, nor of any
agreement, deed, contract, mortgage, indenture, writ, order, decree, legal
obligation or instrument to which Xxxxxxx Audio is a party or by which it or
any of its respective assets or properties are or may be bound; or constitute
a material default (or an event which, with the lapse of time or the giving of
notice, or both, would constitute a material default) thereunder, nor result
in the creation of imposition of any lien, charge or encumbrance, or
restriction of any nature whatsoever with respect to any properties or assets
of Xxxxxxx Audio, nor give to others any interest of rights, including rights
of termination, acceleration or cancellation in or with respect to any of the
properties, assets, contracts or business of Xxxxxxx Audio. This Agreement
and each other agreement and document delivered by Xxxxxxx Audio in connection
herewith have been duly executed and delivered by Xxxxxxx Audio and constitute
the binding obligations of Xxxxxxx Audio enforceable in accordance with their
respective terms. Xxxxxxx Audio has permitted Highway One to examine Xxxxxxx
Audio's corporate minute and stock records books. The corporate minute books
contain the Articles of Incorporation, Certificate of Incorporation, By-laws
and other charter documents of Xxxxxxx Audio as in effect on the date hereof
and a true and complete record of all actions by and meetings of the directors
(and committees thereof) and stockholders of Xxxxxxx Audio and accurately
reflect all transactions referred to therein. Xxxxxxx Audio is not in
violation of any outstanding arbitration award, judgment, order or decree; or
in violation of any Law, including, but not limited to, any
anti-discrimination, hazardous and toxic substances, wage, hour, working
condition, payroll withholding, pension, building, zoning and tax Law. There
have been no allegations of or inquiries concerning any violations of Law by
Xxxxxxx Audio within the past three years.
(h) Litigation. There are no actions, suits, investigations, or proceedings
pending, nor, to the knowledge of Xxxxxxx Audio, threatened, against Xxxxxxx
Audio, the performance of the terms and conditions hereof, or the consummation
of the transactions contemplated hereby, in any court or by or before any
governmental body or agency, including without limitation any claim,
proceeding or litigation for the purpose of challenging, enjoining or
preventing the execution, delivery or consummation of this Agreement. Xxxxxxx
Audio is not subject to any order, judgment, decree, stipulation or consent or
any agreement with any governmental body or agency which affects its business
or operations.
(i) Governmental and Other Approval. To the best of its knowledge, Xxxxxxx
Audio has all permits, licenses, orders and approvals of all federal, state,
local or foreign governmental or regulatory bodies required for Xxxxxxx Audio
to conduct its business as presently conducted. All such permits, licenses,
orders and approvals are in full force and effect and no suspension or
cancellation of any of them is threatened, and none of such permits, licenses,
orders of approvals will be affected by the consummation of the transactions
contemplated by this Agreement. No approval or authorization of or filing
with any governmental authority or any other person or entity on the part of
Xxxxxxx Audio is required as a condition to the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby other
than the filing of documents contemplated by this Agreement.
(j) Title and Authority. The shareholders as listed in Schedule 3.2(j)
are together the holders of record and, to the knowledge of Xxxxxxx Audio, the
sole beneficial owners of all of the outstanding shares of Xxxxxxx Audio
capital stock being exchanged pursuant to this Agreement.
(k) The representation and warranties contained herein do not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein in light of the circumstances under
which they were made, not misleading.
(l) All of the representations and warranties of Xxxxxxx Audio made
herein and in the Schedules attached hereto shall be true and correct in all
material respects when made.
ARTICLE IV
COVENANTS
4.1 Xxxxxxx Audio agrees that prior to the Closing Date:
(a) No dividend shall be declared or paid by other distribution (whether
in cash, stock, property or any combination thereof) or payment declared or
made in respect to Xxxxxxx Audio Shares, nor shall Xxxxxxx Audio purchase,
acquire or redeem or split, combine or reclassify any shares of its capital
stock.
(b) Except as otherwise contemplated hereunder and except for such option
grants to existing or prospective employees and consultants as may be
contemplated by the Xxxxxxx Audio Financial Statements, no change shall be
made in the number of shares of authorized or issued Xxxxxxx Audio Shares; nor
shall any option, warrant, call, right, commitment or agreement of any
character be granted or made by Xxxxxxx Audio relating to its authorized or
issued Xxxxxxx Audio Shares; nor shall Xxxxxxx Audio issue, grant or sell any
securities or obligations convertible into or exchangeable for shares of
Xxxxxxx Audio Shares.
(c) Xxxxxxx Audio will not take, agree to take, or knowingly permit to
be taken any action or do or knowingly permit to be done anything in the
conduct of the business of Xxxxxxx Audio or otherwise, which would be contrary
to or in breach of any of the terms or provisions of this Agreement, or which
would cause any of Xxxxxxx Audio's representations contained herein to be or
become untrue in any material respect at the Closing Date.
(d) Except as contemplated in the Xxxxxxx Audio Financial Statements,
Xxxxxxx Audio will not make, alter or change any employment or other contract
with any of its personnel or make, adapt, alter, revise, or amend any pension,
bonus, profit-sharing or other employee benefit plan, or grant any salary
increase or bonus to any person without the prior written consent of Highway
One, except for normal year-end or anniversary salary adjustments for
employees, excluding officers, except with the consent of Highway One which
consent shall not be unreasonably withheld.
4.2 Highway One agrees that prior to the Closing Date:
(a) No dividend shall be declared or paid or other distribution (whether
in cash, stock, property or any combination thereof) or payment declared or
made in respect of Highway One Shares, nor shall Highway One purchase, acquire
or redeem or split, combine or reclassify any shares of its capital stock.
(b) No change shall be made in the number of authorized or issued Highway
One Shares (other than pursuant to this Agreement); nor shall any option,
warrant, call, right, commitment or agreement (other than this Agreement) of
any character be granted or made by Highway one relating to its authorized or
issued Highway One Shares; nor shall Highway One issue, grant or sell any
securities or obligations convertible into or exchangeable for Highway One
Shares.
(c) Highway One will not take, agree to take, or knowingly permit to be
taken any action, nor do or knowingly permit to be done anything in the
conduct of the business of Highway One or otherwise, which would be contrary
to or in breach of any of the terms or provisions of this Agreement, or which
would cause any of Highway One's representations and warranties contained
herein to be or become untrue in any material respect at the Closing Date
including without limitation amending Highway One's charter documents and
By-laws, except as otherwise provided hereby.
(d) Highway One will not (i) incur any indebtedness for borrowed money;
(ii) assume, guarantee, endorse, or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any other
individual, firm or corporation; or (iii) make any loans, advances or capital
contributions to or investments in, any other individual, firm or corporation.
(e) Highway One will not make, alter or change any employment or other
contract with any of its management personnel or make, adopt, alter, revise,
or amend any pension, bonus, profit-sharing or other employee benefit plan, or
grant any salary increase or bonus to any person without the prior written
consent of Xxxxxxx Audio, except for normal year end or anniversary salary
adjustments for employees, excluding officers.
4.3 Each party to this Agreement agrees that the fair market value of the
Highway One Shares received by each Xxxxxxx Audio Stockholder will be
approximately equal to the fair market value of the like securities
surrendered by the holders of such Xxxxxxx Audio Shares.
ARTICLE V
CERTAIN COVENANTS
5.1 Directors' Meeting. Both Xxxxxxx Audio and Highway One will take all
actions necessary in accordance with applicable law and their Certificates of
Incorporation and By-laws to convene a meeting or obtain the written consents
of their directors as promptly as practicable to consider and vote upon the
approval of the transactions contemplated by this Agreement.
5.2 Conduct of Business Pending the Reorganization. Prior to the
effective date of the Merger, unless Highway One and Xxxxxxx Audio shall
otherwise agree in writing, neither party shall (i) operate its business
otherwise than in the ordinary course, or (ii) authorize, recommend or propose
any merger, consolidation, acquisition of assets, disposition of assets,
material change in its capitalization or any comparable event, not in the
ordinary course of business (in each case, other than the transactions
contemplated hereby and transactions as to which written notice has been given
to the other companies prior to the date hereof), provided, however, that
Xxxxxxx Audio shall be able to undertake any of the foregoing with the consent
of Highway One, which consent shall not be unreasonably withheld.
5.3 Disclosure. Each party acknowledges that it has, and will have,
possession of important confidential information ("Confidential Information")
regarding the other parties. Each party hereto agrees that it shall not use
any confidential information except in furtherance of the transactions
contemplated hereby and shall not divulge, communicate, furnish or make
accessible any Confidential Information to any person, firm, partnership,
corporation or other entity. No party hereto shall make any public statement
from the date of this Agreement forward, including without limitation any
press release, with respect to this Agreement and the transactions
contemplated hereby, without the prior written consent of the other parties
(which consent may not be unreasonably withheld), except as may be required by
law, in which case the parties shall consult with each other as to the nature
and scope of the required disclosure and any protective measures which should
be taken to preserve the confidentiality of the disclosed information. If any
party becomes legally compelled to disclose information relating to this
Agreement, such party shall provide the other parties with notice of such
requirement to allow such party to seek a protective order or other remedy.
If such protective order or other remedy is not obtained, or if compliance
hereof is waived, each party agrees to disclose only that portion of
information which is legally required to be disclosed and to permit the other
parties at their expense to take all reasonable steps to preserve the
confidentiality of the transactions hereunder. The parties shall jointly
prepare a Press Release publicly announcing this Agreement.
5.4 Access. Prior to the Closing, Xxxxxxx Audio shall afford to the
officers, attorneys, accountants, and other authorized representatives of
Highway One free and full access to the premises, books and records of Xxxxxxx
Audio in order that Highway One may make such investigation as it may desire
of the affairs of Xxxxxxx Audio, provided such access is not unreasonably
disruptive to Xxxxxxx Audio's business. Prior to the Closing, Highway One
shall afford to the officers, attorneys, accountants, and other authorized
representatives of Xxxxxxx Audio free and full access to the premises, books
and records of Highway One so that it may make such investigations as it may
desire of the affairs of Highway One, provided such access is not unreasonably
disruptive to Highway One.
5.5 No Solicitation. Neither Xxxxxxx Audio nor Highway One will (nor
will either of them permit any agent or affiliate to) solicit, initiate or
encourage any Acquisition Proposal (as hereinafter defined) or furnish any
information to, or cooperate with, any person, corporation, firm or other
entity with respect to an Acquisition Proposal. As used herein "Acquisition
Proposal" means a proposal for a merger or other business combination
involving such entity or for the acquisition of a substantial equity interest
in, or a substantial portion of the assets of such entity other than the
Merger.
ARTICLE VI
CONDITIONS
6.1 Conditions to the Obligations of Xxxxxxx Audio. The obligations of
Xxxxxxx Audio to consummate the transactions contemplated by this Agreement
are subject to the satisfaction, at or before the consummation of the
transactions contemplated hereby of each of the following conditions:
(a) No action shall have been taken, and no statute, rule, regulation or
order shall have been promulgated, enacted, entered, enforced or deemed
applicable to the transactions contemplated hereby by any federal, state or
foreign government or governmental authority or by any court, domestic or
foreign, including entry of a preliminary or permanent injunction, which
would, in the reasonable opinion of Xxxxxxx Audio, (i) make the transactions
contemplated hereby illegal, (ii) require the divestiture by Xxxxxxx Audio or
any subsidiary of Xxxxxxx Audio of the shares of any company or of a material
portion of the business of Xxxxxxx Audio and its subsidiaries taken as a
whole, (iii) impose material limits on the ability of Xxxxxxx Audio to
effectively control the business of Xxxxxxx Audio and its subsidiaries, (iv)
otherwise materially adversely affect Xxxxxxx Audio and its subsidiaries taken
as a whole, or (v) if the transactions contemplated hereby are consummated,
subject any officer, director, or employee of Xxxxxxx Audio to criminal
penalties or to civil liabilities not adequately covered by insurance or
enforceable indemnification maintained by Xxxxxxx Audio;
(b) No action or proceeding before any court or governmental authority,
domestic or foreign, by any government or governmental authority or by any
other person, domestic or foreign, shall be threatened, instituted or pending
which would reasonably be expected to result in any of the consequences
referred to in clauses (i) through (v) of paragraph (a) above;
(c) Highway One shall have complied in all material respects with its
agreements and covenants herein, and all representations and warranties of
Highway One herein shall be true and correct in all material respects at the
time of Closing as if made at that time, except to the extent they expressly
relate to an earlier date, and Xxxxxxx Audio shall have received a certificate
to that effect to the best of the knowledge of Highway One, signed by the
President of Highway One;
(d) Executed copies of Xxxxxxxx Audio Stockholder Acknowledgments in the
form set forth on Schedule 6.1(d) from each non-dissenting Xxxxxxx Audio
Stockholder; and
(e) All of the conditions precedent outlined in Section 2.1 hereof shall
have been completed to the satisfaction of Xxxxxxx Audio prior to Closing.
6.2 Conditions to the Obligations of Highway One. The obligations of
Highway One to consummate the transactions contemplated hereby are subject to
the satisfaction, at or before the consummation of the transactions
contemplated hereby, of each of the following conditions:
(a) No action shall have been taken, and no statute, rule, regulation or
order shall have been promulgated, enacted, entered, enforced or deemed
applicable to the transactions contemplated hereby by any federal, state or
foreign government or governmental authority or by any court, domestic or
foreign, including the entry of a preliminary or permanent injunction, which
would (i) make the transactions contemplated hereby illegal, (ii) require the
divestiture by Highway One or any subsidiary of Highway One of the shares of
any company or of a material portion of the business of Highway One and its
subsidiaries taken as a whole, (iii) impose material limits on the ability of
Xxxxxxx Audio to effectively control the business of Highway One and its
subsidiaries, (iv) otherwise materially adversely affect Highway One and its
subsidiaries taken as a whole or any Highway One Stockholder, or (v) if the
transactions contemplated hereby are consummated, subject any officer,
director or employee of Highway One to criminal penalties or to civil
liabilities not adequately covered by insurance or enforceable indemnification
maintained by Xxxxxxx Audio;
(b) No action or proceeding before any court or governmental authority,
domestic or foreign, by any government or governmental authority or by any
other person, domestic or foreign, shall be threatened, instituted or pending
which would reasonably be expected to result in any of the consequences
referred to in clauses (i) through (v) of paragraph (a) above;
(c) Xxxxxxx Audio shall have complied in all material respects with its
agreements and covenants herein, and all representations and warranties of
Xxxxxxx Audio herein shall be true and correct in all material respects at the
time of Closing as if made at that time, except to the extent they expressly
relate to an earlier date, and Highway One shall have received a certificate
to that effect, signed by the President of Highway One;
(d) All necessary third party and governmental consents and approvals
required for transactions contemplated hereby shall have been obtained;
(e) Highway One shall have made the necessary arrangements for the
exchange of its stock certificates in exchange for certificates of Xxxxxxx
Audio Shares contemplated by the Merger; and
(f) The conditions precedent to the Closing set forth in Section 2.1
hereof shall have been complied with by the appropriate parties prior to
Closing.
ARTICLE VII
CLOSING DATE
7.1 The closing for the consummation of the Merger contemplated by this
Agreement (the "Closing") shall unless another date or place is agreed to in
writing by the parties hereto, take place at the offices of Xxxxxxx X.
Xxxxxxxxxx, Esq, on the date which is no later than the fifth business day
after the last to occur of the following dates (the actual date of the Closing
shall be referred to as the "Closing Date"):
(a) The date on which all the other conditions set forth in Article V
hereof shall have been satisfied, except to the extent any such conditions
shall have been waived by Highway One or Xxxxxxx Audio; or
(b) Unless extended by the parties.
ARTICLE VIII
POST-CLOSING MATTERS
At the Closing, subject to the Xxxxxxx Audio Stockholders being deemed to
be stockholders of record of the reorganized Highway One, Highway One will
cause its sole officer and director to resign from office and to cause to be
elected to the Board of Directors of Highway One those persons designated by
Xxxxxxx Audio (as noted in Section 2.4, above)
ARTICLE IX
MISCELLANEOUS
9.1 Termination. With respect to each company, this Agreement may be
terminated and the transactions contemplated hereby may be abandoned (i) by
the mutual consent of Highway One and Xxxxxxx Audio at any time, or (ii) by
either Xxxxxxx Audio or Highway One if the transactions contemplated hereby
have not been consummated prior to July 18, 2003, for any reason, or (iii) by
either Xxxxxxx Audio or Highway One if either discovers a material breach of a
representation, warranty, covenant or agreement by the other and such breach
is not cured within ten days of the breaching party's receipt of a notice from
the non-breaching party. In the event of such termination and abandonment,
neither Highway one nor Xxxxxxx Audio (or any of their respective directors or
officers) shall have any liability or further obligation to any other party to
this Agreement, except that nothing herein will relieve any party from
liability for any willful breach of this Agreement.
9.2 Expenses. Whether or not the transactions contemplated are consummated,
all out-of-pocket costs and expenses incurred in connection with the this
Agreement and the transactions contemplated will be paid by the party
incurring such expenses.
9.3 Brokers. No broker or finder is entitled to any brokerage or finder's
fee or other commission or fee from any company or based upon arrangements
made by or on behalf of any party with respect to the transactions
contemplated by this Agreement, except as disclosed on Schedule 9.3 annexed
hereto, and the party so indicated on Schedule 9.3 shall be liable for the
payment thereof.
9.4 Arbitration. Any controversy arising out of, connected to, or relating
to any transactions herein contemplated, or this Agreement, including the
indemnification provisions contained herein, or the breach thereof, including,
but not limited to any claims of violations of Federal and/or state securities
acts, banking statues, consumer protection statutes, federal and/or state
anti-racketeering (e.g. RICO) claims as well as any common law claims and
any state law claims of fraud, negligence, negligent misrepresentations,
and/or conversion and any disputes as to the arbitrability of any such claim
shall be settled by arbitration in the county in which Highway One's principal
operations are situated and in accordance with the commercial rules of the
American Arbitration Association by three (3) arbitrators appointed in
accordance with such rules. Any judgment on the arbitrator's award may be
entered in any court having jurisdiction thereof. The arbitrators shall hear
and determine the matter and shall execute and acknowledge its award, in
writing, and if requested by either party, shall make findings of fact and
conclusions of law. Any award determined by the arbitrators shall be final
and binding on the parties, however, in the event of any misconduct,
partiality, corruption or the like of any arbitrator, the parties shall retain
any rights of appeal to which they may be entitled pursuant to applicable law.
The cost and expense of arbitration, including the fees of the arbitrator, and
the reasonable legal and accounting fees and expenses of the parties, shall be
divided between the parties in such proportion as the arbitrators may
determine, and may be assessed against one party if the arbitrators so
determine.
9.5 Other Actions. Each of the parties hereto agrees to execute and
deliver such other documents, certificates, agreements and other writings and
to take such other actions as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
9.6 Entire Agreement; Waiver and Amendment. This Agreement, the exhibits
and schedules hereto contain the entire agreement by and among Highway One and
Xxxxxxx Audio with respect to the transactions contemplated hereby. Any and
all prior discussions, negotiations, commitments and understandings relating
to the subject matter of this Agreement are superseded by this Agreement.
This Agreement may not be modified, amended or terminated except by a written
agreement specifically referring to this Agreement signed by all of the
parties hereto. No waiver of any breach or default hereunder shall be
considered valid unless in writing signed by the party giving such waiver, and
no such waiver shall be deemed a waiver of any subsequent breach or default of
the same or similar nature.
9.7 Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Utah without regard to its
principles of conflicts of laws.
9.8 Descriptive Headings. The descriptive headings are for convenience
of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.9 Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by registered or certified mail postage prepaid, addressed as follows:
If to Highway One: Highway One-OWEB, Inc.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
with a copy to: Xxxxxxx X. Xxxxxxxxxx, Esq.
Hermes Building, Suite 205
455 East Xxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000-0000
If to Xxxxxxx Audio: Xxxxxxx Audio Corporation of America
P. X. Xxx 00
Xxxxxxx, Xxx Xxxx00000
with a copy to: Xxxx X. Xxxxxx, Esq.
Scolaro, Shulman, Xxxxx, Xxxxxx &
Xxxxxxxx, P. C.
00 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute but one agreement.
9.11 Publicity. All public announcements relating to this Agreement or
the transactions contemplated hereby will be made only as may be agreed upon
by Highway One and Xxxxxxx Audio or as required by law. If public disclosure
or notice is required by law, the disclosing party will use its best efforts
to give the other prior written notice of the disclosure to be made.
9.12 Gender; Number. The use of a particular pronoun herein shall not be
restrictive as to gender, and the use of the singular or plural shall not be
restrictive as to number, but shall be interpreted in all cases as the context
may require.
9.13 Schedules. The Schedules attached hereto and/or delivered herewith are
an integral part of this Agreement as if fully re-written herein.
9.14 Binding Effect. This Agreement will be binding upon and will inure to
the benefit of the parties and their respective heirs, personal
representatives, successors and permitted assigns. Except as herein provided,
no party will have the right to assign this Agreement, or any of such party's
rights hereunder, without the prior written consent of the other parties.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first herein
above written.
HIGHWAY ONE-OWEB, INC.
By: /s/ Xxxxxxxx Xxxxxx
-------------------
Xxxxxxxx Xxxxxx, President
XXXXXXX AUDIO, INC.
BY: /s/ Xxxxxxxx Xxxxxx
-------------------
Xxxxxxxx Xxxxxx, President
XXXXXXX AUDIO CORPORATION OF AMERICA
BY: /s/ Xxxxxxx Xxxxxxxxx _______
---------------------
Xxxxxxx Xxxxxxxxx
SCHEDULE 3.1(c)
See Highway One's Current Report on Form 8-K dated February 7, 2003,
which was filed with the Securities and Exchange Commission on February 12,
2003.
SCHEDULE 6.1(d)
SSI STOCKHOLDER ACKNOWLEDGMENT
In consideration and as a condition of the merger (the "Merger")
between HIGHWAY ONE-OWEB, INC., a Utah corporation ("Highway One"), XXXXXXX
AUDIO, INC., a Delaware corporation ("Newco"), and XXXXXXX AUDIO CORPORATION
OF AMERICA, a New Jersey corporation ("Xxxxxxx Audio") (the "Merger
Agreement"), by which Newco shall merge with and into Xxxxxxx Audio and the
Xxxxxxx Audio Stockholders shall exchange their shares of common stock of
Xxxxxxx Audio for shares of common stock of Highway One thereunder (the
"Exchange"), the undersigned Xxxxxxx Audio Stockholder acknowledges as
follows:
1. That he/she is an "accredited investor" as that term is
defined under Regulation D of the Securities and Exchange
Commission, or has such knowledge and experience in
financial and business matters that he/she is capable of
evaluating the merits and risks of his/her investment in
Highway One;
2. That he/she has had access to all material information
regarding Highway One through the Xxxxx Archives of the
Securities and Exchange Commission at xxx.xxx.xxx or by the
delivery of copies of all Reports and/or Registration
Statements filed by Highway One with the Securities and
Exchange Commission during the past twelve months;
3. That he/she has had access to all material information
regarding Highway One by virtue of he/she being a holder of
outstanding securities or the right to acquire securities
of Highway One, and that he/she has had access to all
material information regarding the Merger, the Merger
Agreement and the Exchange;
4. That he/she is receiving the securities that he/she will
receive pursuant to the Merger and under the Merger
Agreement and in the Exchange for "investment purposes and
not with a view toward the further distribution thereof,"
and that he/she acknowledges and understands that the
securities of Highway One are "restricted securities" as
that term is defined under Rule 144 of the Securities and
Exchange Commission;
5. That he/she consents to the Merger, the Merger Agreement
and the Exchange;
6. That he/she waives any dissenters' rights of appraisal
under the New Jersey Business Corporation Act (the "New
Jersey Law");
7. That he/she owns the securities being exchanged free of any
liens or encumbrances whatsoever; and
8. That he/she has the right power and authority to deliver
this Acknowledgement, without qualification.
XXXXXXX AUDIO STOCKHOLDER:
Dated: 7-7-03 Xxxxxxx Xxxxxxxxx
------ -----------------
Print name
/s/ Xxxxxxx Xxxxxxxxx
---------------------
Signature
5,196,000
---------
Number of shares to be issued
to stockholder under Merger
Agreement
SCHEDULE 6.1(d)
SSI STOCKHOLDER ACKNOWLEDGMENT
In consideration and as a condition of the merger (the "Merger")
between HIGHWAY ONE-OWEB, INC., a Utah corporation ("Highway One"), XXXXXXX
AUDIO, INC., a Delaware corporation ("Newco"), and XXXXXXX AUDIO CORPORATION
OF AMERICA, a New Jersey corporation ("Xxxxxxx Audio") (the "Merger
Agreement"), by which Newco shall merge with and into Xxxxxxx Audio and the
Xxxxxxx Audio Stockholders shall exchange their shares of common stock of
Xxxxxxx Audio for shares of common stock of Highway One thereunder (the
"Exchange"), the undersigned Xxxxxxx Audio Stockholder acknowledges as
follows:
1. That he/she is an "accredited investor" as that term is
defined under Regulation D of the Securities and Exchange
Commission, or has such knowledge and experience in
financial and business matters that he/she is capable of
evaluating the merits and risks of his/her investment in
Highway One;
2. That he/she has had access to all material information
regarding Highway One through the Xxxxx Archives of the
Securities and Exchange Commission at xxx.xxx.xxx or by the
delivery of copies of all Reports and/or Registration
Statements filed by Highway One with the Securities and
Exchange Commission during the past twelve months;
3. That he/she has had access to all material information
regarding Highway One by virtue of he/she being a holder of
outstanding securities or the right to acquire securities
of Highway One, and that he/she has had access to all
material information regarding the Merger, the Merger
Agreement and the Exchange;
4. That he/she is receiving the securities that he/she will
receive pursuant to the Merger and under the Merger
Agreement and in the Exchange for "investment purposes and
not with a view toward the further distribution thereof,"
and that he/she acknowledges and understands that the
securities of Highway One are "restricted securities" as
that term is defined under Rule 144 of the Securities and
Exchange Commission;
5. That he/she consents to the Merger, the Merger Agreement
and the Exchange;
6. That he/she waives any dissenters' rights of appraisal
under the New Jersey Business Corporation Act (the "New
Jersey Law");
7. That he/she owns the securities being exchanged free of any
liens or encumbrances whatsoever; and
8. That he/she has the right power and authority to deliver
this Acknowledgement, without qualification.
XXXXXXX AUDIO STOCKHOLDER:
Dated: 7-07-03 Xxxxxx Xxxxxxxxx
------- ----------------
Print name
/s/ Xxxxxx Xxxxxxxxx
--------------------
Signature
5,040,120
---------
Number of shares to be issued
to stockholder under Merger
Agreement
SCHEDULE 6.1(d)
SSI STOCKHOLDER ACKNOWLEDGMENT
In consideration and as a condition of the merger (the "Merger")
between HIGHWAY ONE-OWEB, INC., a Utah corporation ("Highway One"), XXXXXXX
AUDIO, INC., a Delaware corporation ("Newco"), and XXXXXXX AUDIO CORPORATION
OF AMERICA, a New Jersey corporation ("Xxxxxxx Audio") (the "Merger
Agreement"), by which Newco shall merge with and into Xxxxxxx Audio and the
Xxxxxxx Audio Stockholders shall exchange their shares of common stock of
Xxxxxxx Audio for shares of common stock of Highway One thereunder (the
"Exchange"), the undersigned Xxxxxxx Audio Stockholder acknowledges as
follows:
1. That he/she is an "accredited investor" as that term is
defined under Regulation D of the Securities and Exchange
Commission, or has such knowledge and experience in
financial and business matters that he/she is capable of
evaluating the merits and risks of his/her investment in
Highway One;
2. That he/she has had access to all material information
regarding Highway One through the Xxxxx Archives of the
Securities and Exchange Commission at xxx.xxx.xxx or by the
delivery of copies of all Reports and/or Registration
Statements filed by Highway One with the Securities and
Exchange Commission during the past twelve months;
3. That he/she has had access to all material information
regarding Highway One by virtue of he/she being a holder of
outstanding securities or the right to acquire securities
of Highway One, and that he/she has had access to all
material information regarding the Merger, the Merger
Agreement and the Exchange;
4. That he/she is receiving the securities that he/she will
receive pursuant to the Merger and under the Merger
Agreement and in the Exchange for "investment purposes and
not with a view toward the further distribution thereof,"
and that he/she acknowledges and understands that the
securities of Highway One are "restricted securities" as
that term is defined under Rule 144 of the Securities and
Exchange Commission;
5. That he/she consents to the Merger, the Merger Agreement
and the Exchange;
6. That he/she waives any dissenters' rights of appraisal
under the New Jersey Business Corporation Act (the "New
Jersey Law");
7. That he/she owns the securities being exchanged free of any
liens or encumbrances whatsoever; and
8. That he/she has the right power and authority to deliver
this Acknowledgement, without qualification.
XXXXXXX AUDIO STOCKHOLDER:
Dated: 7-7-03 Xxxxxxx X. Xxxxx ____________
------ ---------------------
Print name
____________________________________
/s/ Xxxxxxx X. Xxxxx
--------------------
Signature
51,960
------
Number of shares to be issued
to stockholder under Merger
Agreement
SCHEDULE 6.1(d)
SSI STOCKHOLDER ACKNOWLEDGMENT
In consideration and as a condition of the merger (the "Merger")
between HIGHWAY ONE-OWEB, INC., a Utah corporation ("Highway One"), XXXXXXX
AUDIO, INC., a Delaware corporation ("Newco"), and XXXXXXX AUDIO CORPORATION
OF AMERICA, a New Jersey corporation ("Xxxxxxx Audio") (the "Merger
Agreement"), by which Newco shall merge with and into Xxxxxxx Audio and the
Xxxxxxx Audio Stockholders shall exchange their shares of common stock of
Xxxxxxx Audio for shares of common stock of Highway One thereunder (the
"Exchange"), the undersigned Xxxxxxx Audio Stockholder acknowledges as
follows:
1. That he/she is an "accredited investor" as that term is
defined under Regulation D of the Securities and Exchange
Commission, or has such knowledge and experience in
financial and business matters that he/she is capable of
evaluating the merits and risks of his/her investment in
Highway One;
2. That he/she has had access to all material information
regarding Highway One through the Xxxxx Archives of the
Securities and Exchange Commission at xxx.xxx.xxx or by the
delivery of copies of all Reports and/or Registration
Statements filed by Highway One with the Securities and
Exchange Commission during the past twelve months;
3. That he/she has had access to all material information
regarding Highway One by virtue of he/she being a holder of
outstanding securities or the right to acquire securities
of Highway One, and that he/she has had access to all
material information regarding the Merger, the Merger
Agreement and the Exchange;
4. That he/she is receiving the securities that he/she will
receive pursuant to the Merger and under the Merger
Agreement and in the Exchange for "investment purposes and
not with a view toward the further distribution thereof,"
and that he/she acknowledges and understands that the
securities of Highway One are "restricted securities" as
that term is defined under Rule 144 of the Securities and
Exchange Commission;
5. That he/she consents to the Merger, the Merger Agreement
and the Exchange;
6. That he/she waives any dissenters' rights of appraisal
under the New Jersey Business Corporation Act (the "New
Jersey Law");
7. That he/she owns the securities being exchanged free of any
liens or encumbrances whatsoever; and
8. That he/she has the right power and authority to deliver
this Acknowledgement, without qualification.
XXXXXXX AUDIO STOCKHOLDER:
Dated: 7-7-03 Xxxxxxx Xxxxxxxxx
------ ---------------------
Print name
/s/ Xxxxxxx Xxxxxxxxx
---------------------
Signature
51,960
------
Number of shares to be issued
to stockholder under Merger
Agreement
