EXHIBIT 2
ACQUISITION AGREEMENT
BY AND AMONG
MOJAVE SOUTHERN, INC.
AND
NEW YORK MEDICAL ACQUISITION CORP, INC.
AND
THE SHAREHOLDERS OF NEW YORK MEDICAL ACQUISITION CORP., INC.
DATED AS OF JULY __, 2002
AGREEMENT AND PLAN OF REORGANIZATION
This ACQUISITION AGREEMENT is made and entered into as of July
__, 2002, among MOJAVE SOUTHERN, INC., a Nevada corporation ("MOJAVE
SOUTHERN"), NEW YORK MEDICAL ACQUISITION CORP, INC., a Delaware
corporation ("NYMA"), and the shareholders of NYMA, each of whom has
signed an Acknowledgement and Assumption Agreement, in which they agree to
the terms, conditions, and covenants of this Agreement in the form of
Schedule A hereto, which such agreement has been filed with the records of
NYMA, (collectively "NYMA SHAREHOLDERS").
RECITALS
A. Upon the terms and subject to the conditions of this
Agreement and in accordance with Nevada and Delaware Law (as defined
herein), MOJAVE SOUTHERN intends to acquire all of the outstanding common
stock of NYMA.
B. The Board of Directors of NYMA and MOJAVE SOUTHERN have each:
(i) determined that the intended acquisition of NYMA by MOJAVE SOUTHERN is
consistent with and in furtherance of the respective long-term business
strategy of their companies; and fair to, and in the best interests of,
their companies, and (ii) approved this Acquisition Agreement(hereinafter
"Agreement")and other transactions contemplated by this Agreement.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
The terms defined in this Article shall have the following
respective meanings for all purposes of this Agreement:
1.1 "Acquisition" means the acquisition of all of the outstanding common
stock of NYMA by MOJAVE SOUTHERN.
1.2 "Affiliate" means, with respect to any Person, any family member and
any other Person controlling, controlled by or under common control with such
Person.
1.3 "Closing" means the consummation and effectuation of the transactions
contemplated herein pursuant to the terms and conditions of this Agreement. The
Closing shall be held on the date and at the location specified in Section 2.2.
1.4 "Closing Date" means the date on which the Closing actually occurs
pursuant to Section 2.2.
1.5 "Code" means the Internal Revenue Code of 1986, as amended.
1.6 Intentionally Omitted.
1.7 "Delaware Law" means the Delaware General Corporation Law.
1.8 "Disclosure Schedule" means the disclosure schedule executed by each
party (referencing the appropriate section of paragraph numbers) that are
delivered to the other parties on or prior to the date of this Agreement.
1.9 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
1.10 "GAAP" means generally accepted accounting principles as in effect in
the United States, consistently applied.
1.11 "Governmental Entity" means any federal or state court,
administrative agency, commission, governmental or regulatory authority.
1.12 "MOJAVE SOUTHERN Common Stock" means the shares of common stock of
MOJAVE SOUTHERN, par value .001 per share to be received by the NYMA
SHAREHOLDERS, in exchange for 100% of their NYMA shares of Common Stock.
1.13 "Knowledge" means, with respect to a party hereto or with respect to
any matter in question, that any of the Chairman, Chief Executive Officer, Chief
Operating Officer or Chief Financial Officer of such party, has actual knowledge
after a reasonable review of such matter.
1.14 "Material Adverse Effect" when used in connection with an entity
means any change, event, violation, circumstance or effect that is
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materially adverse to the business, assets (including intangible assets),
capitalization, financial condition or results of operations of such entity and
its subsidiaries taken as a whole.
1.15 "OTCBB" means the OTC Bulletin Board that is operated by the National
Association of Securities Dealers but is separate from the NASDAQ stock market.
1.16 "Person" means any individual, corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any limited
liability company or joint stock company), firm or other enterprise,
association, organization, entity or Governmental Entity.
1.17 "SEC" means the United States Securities and Exchange Commission.
1.18 "Securities Act" means the Securities Act of 1933, as amended.
1.19 "Tax Return" means any return, report or statement required to be
filed with any governmental authority with respect to Taxes.
1.20 "Taxes" means all taxes of any kind, including, without limitation,
those on or measured by or referred to as income, gross receipts, sales, use, ad
valorem, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, value added, property or windfall profits
taxes, customs, duties or similar fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any governmental authority, domestic or foreign.
ARTICLE 2
THE ACQUISITION
2.1 The Acquisition. On the Closing Date and subject to and upon the terms
and conditions of this Agreement and the applicable provisions of Delaware Law,
MOJAVE SOUTHERN shall acquire 100% of the issued and outstanding common stock of
NYMA.
2.2 Closing Date. Subject to the provisions of this Agreement, the parties
hereto shall cause the Acquisition to be consummated by exchanging all of the
documents required by this Agreement to be exchanged. The Closing of the
Acquisition shall take place at the New York offices of NYMA, at a time and date
to be specified by the parties, which shall be no later than the fifth (5th)
business day after the satisfaction or waiver of the conditions set forth in
Article 7.
2.3 Effect of the Acquisition. At the Closing Date, the effect of the
Acquisition shall be as provided in this Agreement and the applicable provisions
of Delaware Law. Without limiting the generality of the
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foregoing, and subject thereto, at the Closing Date, 100% of the common stock of
NYMA shall vest in MOJAVE SOUTHERN.
2.4 Articles of Incorporation; Bylaws.
(a) At the Closing Date, the Certificate of Incorporation of
MOJAVE SOUTHERN, as in effect immediately prior to the Closing Date, shall
remain the Articles of Incorporation of MOJAVE SOUTHERN until thereafter
amended as provided by law and such Articles of Incorporation.
(b) At or before the Closing Date, MOJAVE SOUTHERN shall have
authorized one hundred (100,000,000) million shares of common stock.
(c) The Bylaws of MOJAVE SOUTHERN, as in effect immediately
prior to the Closing Date, shall be the Bylaws of MOJAVE SOUTHERN until
thereafter amended.
2.5 Directors and Officers. The directors and officers of MOJAVE SOUTHERN
shall be the directors and officers of MOJAVE SOUTHERN until the Closing. On the
Closing Date, all of the directors and officers of MOJAVE SOUTHERN shall resign
and shall be replaced by the officers and directors designated by NYMA.
2.6 Effect on Capital Stock. At the Closing Date, by virtue of the
Acquisition:
(a) Capital Stock of NYMA. One hundred (100%) percent of the
issued and outstanding common stock of NYMA will be transferred, by
executed and notarized or guaranteed stock powers to MOJAVE SOUTHERN, in
exchange for a maximum total of 29,174,510 shares of MOJAVE SOUTHERN
Common Stock as defined in Section 1.12. At the Closing, each issued and
outstanding share of common stock of NYMA shall be exchanged for one (1)
validly issued, fully paid and nonassessable share of MOJAVE SOUTHERN
Common Stock. This shall be the total number of MOJAVE SOUTHERN Common
Stock to be paid for 100% of the NYMA common stock. At the Closing, there
shall be no options, warrants or other agreements to purchase shares of
NYMA common stock outstanding. In the event that any NYMA SHAREHOLDERS'
certificates have been lost, stolen or destroyed, such NYMA SHAREHOLDER
will be entitled to receive a stock certificate representing MOJAVE
SOUTHERN'S Common Stock only after providing an affidavit of loss to
MOJAVE SOUTHERN.
(b) Capital Stock of MOJAVE SOUTHERN. Each share of MOJAVE
SOUTHERN Common Stock issued and outstanding immediately prior to the
Closing Date shall remain unchanged as a result of the Acquisition. At the
Closing, there shall be no options, warrants or other agreements or rights
to purchase shares of MOJAVE SOUTHERN'S capital stock outstanding. MOJAVE
SOUTHERN hereby agrees that in connection and consideration of the
Acquisition each of the following
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persons has agreed, at or prior to the Closing, to cancel the following
amount of shares of common stock of MOJAVE SOUTHERN owned by them and to
return the same to treasury: Xxxxxx Xxxxx 1,750,000 shares, Xxxxx Xxxxxx
5,475,000 shares and Xxxxx Xxxxxxx 1,750,000. The cumulative amount of
shares being retired is 8,975,000, which will reduce the total number of
shares of common stock of MOJAVE SOUTHERN issued and outstanding at
closing to 5,725,000.
(c) Private Placement. NYMA has retained Vertical Capital
Partners, Inc., to raise in a private placement of convertible promissory
notes between two million five hundred thousand ($2,500,000) dollars and
seven million ($7,000,000) dollars (the "Private Placement") and will
close with MOJAVE SOUTHERN upon receipt of a minimum of two million
five-hundred thousand ($2,500,000) dollars in proceeds. At the Closing,
each dollar invested under the convertible note will be exchanged into the
right to receive one (1) validly issued, fully paid and nonassessable
share of MOJAVE SOUTHERN common stock. The seven million ($7,000,000)
dollars underlying the notes are authorized but not issued and such shares
are in addition to the shares defined in Section 1.12.
2.7 Issuance of Certificates.
MOJAVE SOUTHERN to Provide Common Stock. On the Closing Date, MOJAVE
SOUTHERN shall deliver to the NYMA SHAREHOLDERS stock certificates in
accordance with Section 2.6(a) totaling up to 29,174,510 shares of MOJAVE
SOUTHERN Common Stock, in exchange for 100% of NYMA's issued and
outstanding common stock.
2.8 Intentionally Omitted.
2.9 Taking of Necessary Action; Further Action. If, at any time after the
Closing Date, any further action is necessary or desirable to carry out the
purposes of this Agreement and to vest MOJAVE SOUTHERN with full right, title
and possession to 100% of the common stock of NYMA, the management of NYMA and
MOJAVE SOUTHERN agree to take all such lawful and necessary further action.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF NYMA
NYMA represents and warrants to MOJAVE SOUTHERN, subject to such
exceptions as are specifically disclosed in the NYMA Disclosure Schedule
(referencing the appropriate section and paragraph numbers) delivered by
NYMA to MOJAVE SOUTHERN on or prior to the date of this Agreement, as
follows:
3.1 Organization and Qualification; Subsidiaries. NYMA is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and has the requisite corporate power and authority to own,
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lease and operate its assets and properties and to carry on its business as it
is now being conducted. NYMA is in possession of all material franchises,
authorizations, licenses, permits, easements, consents, certificates, approvals
and orders ("NYMA Approvals") necessary to own, lease and operate the properties
it purports to own, operate or lease and to carry on its business as it is now
being conducted, except where the failure to have such NYMA Approvals would not,
individually or in the aggregate, have a Material Adverse Effect on NYMA. NYMA
is duly qualified or licensed as a foreign corporation to do business, and is in
good standing, in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary, except where the failure to be so duly
qualified or licensed and in good standing would not, either individually or in
the aggregate, have a Material Adverse Effect on NYMA. NYMA does not directly
own any equity interest in, or any interest convertible or exchangeable or
exercisable for, any equity interest in, any corporation, partnership, joint
venture or other business, association or entity. NYMA owns all of the assets
and business set forth in Section 3.1 of the NYMA Disclosure Schedule, free and
clear of all material claims, liens and encumbrances of any kind or nature
whatsoever, except as set forth in Section 3.1 of the NYMA Disclosure Schedule.
3.2 Articles of Incorporation and Bylaws. NYMA has previously furnished to
MOJAVE SOUTHERN a complete and correct copy of its Certificate of Incorporation
and Bylaws as amended to date. Such Certificate of Incorporation and Bylaws are
in full force and effect. NYMA is not in material violation of any of the
provisions of its Certificate of Incorporation or Bylaws.
3.3 Authority Relative to This Agreement. NYMA has all necessary corporate
or other power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by NYMA and
the NYMA SHAREHOLDERS and the consummation by NYMA and the NYMA SHAREHOLDERS of
the transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of NYMA and the NYMA SHAREHOLDERS and
subject, to the NYMA SHAREHOLDERS' approval no other corporate proceedings on
the part of NYMA or the NYMA SHAREHOLDERS are necessary to authorize this
Agreement or to consummate the transactions so contemplated. This Agreement has
been duly and validly executed and delivered by NYMA and each NYMA SHAREHOLDER
signing this Agreement, and, assuming the due authorization, execution and
delivery by MOJAVE SOUTHERN, constitutes legal and binding obligations of NYMA
and the NYMA SHAREHOLDERS, enforceable against NYMA and the NYMA SHAREHOLDERS in
accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to creditor's rights generally and the application
of principals of equity, including without limitation the principal that
equitable remedies, such as the remedy of specific performance are subject to
the discretion of the court before which any proceeding may therefore be
brought.
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3.4 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by NYMA does
not, and the performance of this Agreement by NYMA shall not, (i) conflict
with or violate its Articles of Incorporation or Bylaws, (ii) conflict
with or violate any law, rule, regulation, order, judgment or decree
applicable to NYMA by which NYMA is bound or affected, or (iii) result in
any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or impair NYMA's
rights or alter the rights or obligations of any third party under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a material lien or material
encumbrance on any of the properties or assets of NYMA pursuant to, any
material note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other similar instrument or similar
obligation to which NYMA is a party or by which its properties are bound
or affected.
(b) The execution and delivery of this Agreement by NYMA does
not, and the performance of this Agreement by NYMA shall not, require any
consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity, except (A) for applicable
requirements, if any, of the Securities Act, the Exchange Act, state
securities laws, and the rules and regulations thereunder, the rules and
regulations of the National Association of Securities Dealers ("NASD"),
and (B) where the failure to obtain such consents, NYMA Approvals,
authorizations or permits, or to make such filings or notifications, (i)
would not prevent consummation of the Acquisition or otherwise prevent
NYMA from performing its obligations under this Agreement or (ii) could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on NYMA or the NYMA SHAREHOLDERS.
3.5 Compliance; Permits.
(a) NYMA is not in material default or material violation of,
(i) any law, rule, regulation, order, judgment or decree applicable to
NYMA or by which its properties is bound or affected, or (ii) any material
note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other similar instrument or similar obligation to
which NYMA is a party or by which NYMA or its properties is bound or
affected, except for any conflicts, defaults or violations which could not
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on NYMA. To the Knowledge of NYMA, no
investigation or review by any governmental or regulatory body or
authority is pending or threatened against NYMA, nor has any Governmental
Entity indicated an intention to conduct the same, other than, in each
such case, those the outcome of which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
NYMA.
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(b) NYMA holds all permits, licenses, variances, exemptions,
orders and approvals from Governmental Entities, which are material to
operation of the business of NYMA (collectively, the "NYMA Permits"). NYMA
is in compliance in all material respects with the terms of the NYMA
Permits, except where the failure to comply could not reasonably be
expected to have a Material Adverse Effect on NYMA.
3.6 Intentionally Omitted.
3.7 No Undisclosed Liabilities. To NYMA's Knowledge, NYMA does not have
any liabilities (absolute, accrued, contingent or otherwise) of a nature
required to be disclosed on a balance sheet or in the related notes to the
financial statements prepared in accordance with GAAP (with the revenue
recognition principles thereof) which are, individually or in the aggregate,
material to the business, results of operations or financial condition of NYMA
taken as a whole, except (i) banking, accounting, legal and printing fees
associated with the Acquisition, or (ii) liabilities incurred in the ordinary
course of NYMA's business since March 20, 2002.
3.8 Intentionally Omitted.
3.9 Absence of Litigation. There are no material claims, actions, suits or
proceedings pending or, to the Knowledge of NYMA, threatened (or, to the
Knowledge of NYMA, any governmental or regulatory investigation pending or
threatened) against NYMA as to which NYMA has received any written notice or
assertion, or any properties or rights of NYMA, before any court, arbitrator or
administrative, governmental or regulatory authority or body, domestic or
foreign; and there are no claims, actions, suits, proceedings or judgments
against NYMA which would affect NYMA's right and authority to effect the
transactions contemplated hereby.
3.10 Employee Benefit Plans. Other than as provided in Section 3.10 of the
NYMA Disclosure Schedule, NYMA is not a party to any oral or written (i)
contract for the employment of any officer or employee that is not terminable on
thirty (30) days (or less) notice, (ii) profit sharing, bonus, deferred
compensation, pension or retirement plan, agreement or arrangement; or (iii)
collective bargaining agreement. The only employee fringe or benefit plan,
commitment or other arrangements (whether or not set forth in a written document
and including, without limitation, all "employee benefit plans" within the
meaning of Section 3(3)of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) that covers any active, former employee, director or
consultant of NYMA, or with respect to which NYMA has or may in the future have
liability, are listed in Section 3.10 the NYMA Disclosure Schedule (the "NYMA
Plans"). NYMA has provided to MOJAVE SOUTHERN: (i) correct and complete copies
of all documents embodying each NYMA Plan including without limitation all
amendments thereto, all related trust documents, and all material written
agreements and contracts relating to each such NYMA Plan and any other
information requested by MOJAVE SOUTHERN regarding the NYMA Plan.
3.11 Labor Matters. There is no litigation pending or, to the Knowledge of
NYMA, threatened, between NYMA and any of its respective
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employees. As of the date of this Agreement, NYMA is not a party to any
collective bargaining agreement or other labor union contract applicable to
Persons employed by NYMA nor to NYMA's Knowledge are there any activities or
proceedings of any labor union to organize any such employees. As of the date of
this Agreement, NYMA has no Knowledge of any strikes, slowdowns, work stoppages
or lockouts, or threats thereof, by or with respect to any employees of NYMA.
3.12 Ability to Transfer NYMA Stock. To the Knowledge of NYMA, each NYMA
SHAREHOLDER is the sole owner of his or her NYMA stock, and has the full power
and authority to transfer his or her shares of NYMA to MOJAVE SOUTHERN in
accordance with this Agreement. Upon the transfer by NYMA SHAREHOLDERS of all
their common stock of NYMA to MOJAVE SOUTHERN, MOJAVE SOUTHERN shall be the
owner 100% of such NYMA common stock free and clear of any and all material
claims, liens and encumbrances of any kind or nature whatsoever.
3.13 Restrictions on Business Activities. There is no material agreement,
judgment, injunction, order or decree binding upon NYMA which has or could
reasonably be expected to have the effect of prohibiting or materially impairing
any business practice of NYMA, any acquisition of property by NYMA or the
conduct of business by NYMA as currently conducted.
3.14 Title to Property. NYMA owns the plans and designs for its products
free and clear of all liens, charges and encumbrances except liens for Taxes not
yet due and payable and such liens or other imperfections of title, if any, as
do not materially detract from the value of or interfere with the present use of
the license affected thereby; and all material licenses which NYMA holds and
which are required for the operation of its business are in good standing, valid
and effective in accordance with their respective terms, and there is not, under
any of such licenses, any existing material default or event of default (or any
event which with notice or lapse of time, or both, would constitute a material
default and in respect of which NYMA has not taken adequate steps to prevent
such default from occurring). All the plants, structures and equipment of NYMA,
are in good operating condition and repair, in all material respects.
3.15 Taxes. Prior to the Closing Date, NYMA will have timely filed all Tax
Returns required to be filed by it (other than those that are not, individually
or in the aggregate, material), have paid all Taxes shown thereon to be due and
have provided adequate accruals in all material respects in accordance with GAAP
in its financial statements for any Taxes that have not been paid, whether or
not shown as being due on any returns. In addition, (i) no material claim for
unpaid Taxes that are currently, or will be prior to the Closing Date, due and
payable has become a lien against the property of NYMA or is being asserted
against NYMA, (ii) no audit of any material Tax Return of NYMA is being
conducted by a tax authority, (iii) no extension of the statute of limitations
on the assessment of any Taxes has been granted by NYMA or any of its
subsidiaries and is currently in effect and (iv) there is no agreement, contract
or arrangement to which NYMA is a party that may result in the payment of any
amount that would not be
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deductible pursuant to Sections 280G, 162(a) (by reason of being unreasonable in
amount), 162(b) through (p) or 404 of the Code.
3.16 Environmental Matters. To the Knowledge of NYMA, NYMA (i) has
obtained all applicable permits, licenses and other authorizations which are
material to the business of NYMA and required under federal, state or local laws
relating to pollution or protection of the environment, including laws relating
to emissions, discharges, releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials or wastes into ambient air,
surface water, ground water, or land or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants or hazardous or toxic materials or wastes
by NYMA (or its respective agents); (ii) are in material compliance with all
terms and conditions of such required permits, licenses and authorizations, and
also are in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in such laws or contained in any regulation, code, plan, order,
decree, judgment, notice or demand letter issued, entered, promulgated or
approved there under; (iii) as of the date hereof, has not received notice of
any event, condition, circumstance, activity, practice, incident, action or plan
which is reasonably likely to interfere with or prevent continued material
compliance or which would give rise to any material common law or statutory
liability, or otherwise form the basis of any claim, action, suit or proceeding,
based on or resulting from NYMA's (or any of its respective agents) manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, or release into the environment, of any
pollutant, contaminant, or hazardous or toxic material or waste; and (iv) have
taken all actions necessary under applicable requirements of federal, state or
local laws, rules or regulations to register any products or materials required
to be registered by NYMA (or any of its respective agents) thereunder.
3.17 Intangible Assets. Section 3.17 of the NYMA Disclosure Schedule
contains a true and complete list of all patents and patent applications
(pending or in the process of preparation), domestic or foreign, patent rights,
trademarks, trade names and licenses under the patents of others, trade secrets,
secret processes and other proprietary rights of every kind and nature used or
necessary for use by NYMA in its business as presently conducted. To NYMA's
Knowledge, all such patents, patent applications, patent rights and licenses are
valid and effective in accordance with their terms, and all such trade names,
trade secrets, secret processes and other proprietary rights are valid and
effective. NYMA has not received any notice of any claim of infringement. Except
as disclosed in Section 3.17 of the NYMA Disclosure Schedule, there are no
agreements, contracts or obligations under which NYMA is obligated with respect
to, or is using, any patents, patent applications, patent rights, trademarks,
trade names, licenses under the patents of others, trade secrets, secret
processes or other proprietary rights. The trade secrets and "know-how" of NYMA
are in such form and of such quality that, following the Closing, NYMA will be
able to continue to sell the products heretofore provided by NYMA.
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3.18 Agreements, Contracts and Commitments. Except as set forth in Section
3.18 of the NYMA Disclosure Schedule, NYMA is not a party to and is not bound
by:
(a) any employment or consulting agreement, contract or
commitment with any officer, director or member of NYMA's Board of
Directors, other than those that are terminable by NYMA on no more than
thirty (30) days notice and which do so with no express (whether by
contract or by policy) liability or financial obligation to NYMA;
(b) any agreement or plan, including, without limitation, any
stock option plan, stock appreciation right plan or stock purchase plan,
any of the benefits of which will be increased, or the vesting of benefits
of which will be accelerated, by the occurrence of any of the transactions
contemplated by this Agreement or the value of any of the benefits of
which will be calculated on the basis of any of the transactions
contemplated by this Agreement;
(c) any agreement, contract or commitment containing any
covenant limiting in any respect the right of NYMA to engage in any line
of business or to compete with any Person; or
(d) any agreement, contract or commitment currently in force
relating to the disposition or acquisition by NYMA after the date of this
Agreement of a material amount of assets not in the ordinary course of
business or pursuant to which NYMA has any material ownership interest in
any corporation, partnership, joint venture or other business enterprise.
NYMA is not and, to NYMA's Knowledge, no other party to a NYMA
Contract (as defined below), is in material breach, violation or default
under, and NYMA has not received written notice that it has breached,
violated or defaulted under, any of the material terms or conditions of
any of the agreements, contracts or commitments to which NYMA is a party
or by which it is bound that are required to be disclosed in Section 3.18
of the NYMA Disclosure Schedule pursuant to this Section 3.18 hereof (any
such agreement, contract or commitment, a "NYMA Contract") in such a
manner as would permit any other party to cancel or terminate any such
NYMA Contract, or would permit any other party to seek material damages or
other remedies (for any or all of such breaches, violations or defaults,
in the aggregate).
3.19 Insurance. NYMA maintains insurance policies covering the assets,
business, equipment, properties, operations, employees, officers and directors
of NYMA which are of the type and in amounts customarily carried by Persons
conducting businesses similar to those of NYMA.
3.20 Directors and Officers. Section 3.20 of the NYMA Disclosure Schedule
contains a complete list of the current Board of Directors and executive
officers, and the management of NYMA.
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3.21 Record Books. The record books of NYMA are in good order, complete,
accurate and up to date.
3.22 Related Party Transactions. Except as set forth in Section 3.22 of
the NYMA Disclosure Schedule, neither any officer nor any director or employee
of NYMA has any direct interest in any competitor, supplier, or customer of NYMA
or in any Person from whom or to whom NYMA leases any real or personal property,
or in any other Person with whom NYMA is doing business.
3.23 Lack of Disputes. There is currently no material and adverse dispute,
pending or, to the Knowledge of NYMA, threatened, anticipated or contemplated of
any kind with any customer, supplier, source of financing, employee, landlord,
or licensee of NYMA in an amount in excess of $50,000.
3.24 Board Approval. The Board of Directors of NYMA has, as of the date of
this Agreement (i) approved this Agreement and the transactions contemplated
hereby and thereby, (ii) determined that the Acquisition is in the best
interests of the stockholders of NYMA and is on terms that are fair to such
stockholders and (iii) recommended that the NYMA Shareholders approve this
Agreement and the Acquisition.
3.25 NYMA SHAREHOLDERS. NYMA has received a written representation from
each of NYMA's SHAREHOLDERS, which NYMA reasonably believes, that each NYMA
SHAREHOLDER is an "accredited investor" as that term is defined in the Rules and
Regulations under the Securities Act.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF MOJAVE SOUTHERN
MOJAVE SOUTHERN hereby represents and warrants to NYMA, subject
to such exceptions as specifically disclosed in the MOJAVE SOUTHERN
Disclosure Schedule (referencing the appropriate section and paragraph
number) delivered by MOJAVE SOUTHERN to NYMA on or prior to the date of
this Agreement, as follows:
4.1 Organization and Qualification; Subsidiaries. MOJAVE SOUTHERN and its
wholly owned subsidiary, Norden Associates, Inc. are each a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and they each have the requisite corporate power and authority to own,
lease and operate its assets and properties and to carry on its business as it
is now being conducted. MOJAVE SOUTHERN and its subsidiary are in possession of
all franchises, grants, authorizations, licenses, permits, easements, consents,
certificates, approvals and orders ("MOJAVE SOUTHERN Approvals") necessary to
own, lease and operate the properties it purports to own, operate or lease and
to carry on its business as they are now being conducted, except where the
failure to have such MOJAVE SOUTHERN Approvals would not, individually or in the
aggregate, have a Material Adverse Effect on MOJAVE SOUTHERN. MOJAVE SOUTHERN
and its subsidiary are duly qualified or licensed as a foreign corporation to do
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business, and is in good standing, in each jurisdiction where the character of
the properties owned, leased or operated by it or the nature of its activities
makes such qualification or licensing necessary, except for such failures to be
so duly qualified or licensed and in good standing that would not, either
individually or in the aggregate, have a Material Adverse Effect on MOJAVE
SOUTHERN. Except for its ownership of Norden Associates, Inc., MOJAVE SOUTHERN
does not directly or indirectly own any equity or similar interest in, or any
interest convertible or exchangeable or exercisable for, any equity or similar
interest in, any corporation, partnership, joint venture or other business,
association or entity. Norden Associates is the only subsidiary of MOJAVE
SOUTHERN. All of the outstanding shares of capital stock of the subsidiaries of
MOJAVE SOUTHERN have been validly issued and are fully paid and nonassessable
and are owned free and clear of all liens and free of any other restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests).
4.2 Articles of Incorporation and Bylaws. MOJAVE SOUTHERN has previously
furnished to NYMA a complete and correct copy of its Articles of Incorporation
and Bylaws as amended to date. Such Articles of Incorporation and Bylaws and
equivalent organizational documents of Norden Associates, Inc. are in full force
and effect. MOJAVE SOUTHERN is not in violation of any of the provisions of its
Articles of Incorporation or Bylaws.
4.3 Capitalization. The authorized capital stock of MOJAVE SOUTHERN
consists of 100,000,000 shares of common stock, par value $0.001 per share and
5,000,000 shares of Preferred Stock, par value $0.001 share. At the close of
business on July 23, 2002, MOJAVE SOUTHERN shares of common stock issued and
outstanding were 14,700,000 shares, all of which are validly issued, fully paid
and non-assessable. All shares of MOJAVE SOUTHERN Common Stock subject to
issuance as aforesaid, upon issuance on the terms and conditions specified in
the instruments pursuant to which they are issuable, shall, and the shares of
MOJAVE SOUTHERN Common Stock to be issued pursuant to this Agreement will be,
duly authorized, validly issued, fully paid and non-assessable. Except as set
forth in Section 4.3 of the MOJAVE SOUTHERN Disclosure Schedule, there are no
options, warrants or other rights, agreements, puts, calls, contracts,
arrangements or commitments of any kind related to the issued or unissued shares
of capital stock of MOJAVE SOUTHERN or obligations of MOJAVE SOUTHERN to issue
or sell any shares of capital stock of or other equity interests in MOJAVE
SOUTHERN. There are no obligations, contingent or otherwise, of MOJAVE SOUTHERN
to repurchase, redeem or otherwise acquire any shares of MOJAVE SOUTHERN Common
Stock or to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any other entity. MOJAVE SOUTHERN is not a
party to any agreement restricting the transfer of, relating to the voting of,
requiring registration of, or granting any preemptive or, antidilutive rights
with respect to, any securities of MOJAVE SOUTHERN. However, it is agreed that
in connection and consideration of the Acquisition each of the following persons
agrees to cancel the following number of shares owned by him or her and to
return the same to treasury: Xxxxxx Xxxxx 1,750,000 shares, Xxxxx Xxxxxx
5,475,000 shares and Xxxxx Xxxxxxx 1,750,000. The cumulative amount of shares
being retired is 8,975,000 which will reduce the
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total number of shares of common stock of MOJAVE SOUTHERN issued and outstanding
at closing to 5,725,000, plus the 29,174,510 shares of common stock of MOJAVE
SOUTHERN to be issued in exchange with and for all of the issued and outstanding
shares of common stock of NYMA, including the authorization of up to 7,000,000
shares in connection with the anticipated placement of NYMA.
4.4 Authority Relative to This Agreement. MOJAVE SOUTHERN has all
necessary corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. The execution and delivery of this
Agreement by MOJAVE SOUTHERN and the consummation by MOJAVE SOUTHERN of the
transactions contemplated hereby has been duly and validly authorized by all
necessary corporate action on the part of MOJAVE SOUTHERN and no other corporate
proceedings on the part of MOJAVE SOUTHERN are necessary to authorize this
Agreement, or to consummate the transactions so contemplated. The execution and
delivery of this Agreement by MOJAVE SOUTHERN and the consummation by MOJAVE
SOUTHERN of the transactions contemplated hereby do not require the approval of
the stockholders of MOJAVE SOUTHERN. This Agreement has been duly and validly
executed and delivered by MOJAVE SOUTHERN and, assuming the due authorization,
execution and delivery by NYMA, constitutes legal and binding obligations of
MOJAVE SOUTHERN, enforceable against MOJAVE SOUTHERN in accordance with their
respective terms.
4.5 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by MOJAVE
SOUTHERN does not, and the performance of this Agreement by MOJAVE
SOUTHERN shall not, (i) conflict with or violate the Articles of
Incorporation, Bylaws or equivalent organizational documents of MOJAVE
SOUTHERN or any subsidiary, (ii) subject to compliance with the
requirements set forth in Section 4.5(b) below, conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to MOJAVE
SOUTHERN or any subsidiary or by which its properties are bound or
affected, or (iii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or impair MOJAVE SOUTHERN'S rights or alter the rights or
obligations of any third party under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the properties or assets of
MOJAVE SOUTHERN pursuant to, any material note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument
or obligation to which MOJAVE SOUTHERN or any subsidiary is a party or by
which MOJAVE SOUTHERN or any subsidiary or any of their respective
properties are bound or affected.
(b) The execution and delivery of this Agreement by MOJAVE
SOUTHERN does not, and the performance of this Agreement by MOJAVE
SOUTHERN shall not, require any consent, notice, report, order, approval,
authorization or permit of, or filing with or notification to, any
Governmental Entity except (i) for applicable requirements, if
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any, of the Securities Act, the Exchange Act, state securities laws, and
the rules and regulations thereunder, the rules and regulations of the
NASD, and the mailing to MOJAVE SOUTHERN Stockholders and filing with the
SEC of a notice pursuant to SEC Rule 14f-1 under the Exchange Act; and
(ii) where the failure to obtain such consents, MOJAVE SOUTHERN Approvals,
authorizations or permits, or to make such filings or notifications (a)
would not prevent the consummation of the Acquisition or otherwise prevent
MOJAVE SOUTHERN from performing its obligations under this Agreement, or
(b) could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect on MOJAVE SOUTHERN.
4.6 Compliance; Permits.
(a) MOJAVE SOUTHERN is not in conflict with, or in default or
violation of, (i) any law, rule, regulation, order, judgment or decree
applicable to MOJAVE SOUTHERN or by which its properties is bound or
affected, or (ii) any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which MOJAVE SOUTHERN is a party or by which MOJAVE SOUTHERN
or its properties is bound or affected, except for any conflicts, defaults
or violations which could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on MOJAVE SOUTHERN. To the
Knowledge of MOJAVE SOUTHERN, no investigation or review by any
governmental or regulatory body or authority is pending or threatened
against MOJAVE SOUTHERN, nor has any governmental or regulatory body or
authority indicated an intention to conduct the same, other than, in each
such case, those the outcome of which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
MOJAVE SOUTHERN.
(b) MOJAVE SOUTHERN holds all permits, licenses, variances,
exemptions, certifications, qualifications, requirements, registrations,
orders and approvals from governmental authorities, which are material to
operation of the business of MOJAVE SOUTHERN (collectively, the "MOJAVE
SOUTHERN Permits"). MOJAVE SOUTHERN is in compliance in all respects with
the terms of the MOJAVE SOUTHERN Permits, except where failure to comply
could not reasonably be expected to have a Material Adverse Effect on
MOJAVE SOUTHERN and all MOJAVE SOUTHERN Permits are outstanding and in
good standing and there are no existing actions, seeking to cancel,
terminate or limit such MOJAVE SOUTHERN Permits and MOJAVE SOUTHERN is in
compliance with all obligations, instructions or requirements thereof.
MOJAVE SOUTHERN has never been the subject of an Occupational and Safety
Health Administration (or similar agency) inspection or found by any
agency to be in violation of any occupational safety or health law. MOJAVE
SOUTHERN has never been the subject of an inspection or inquiry regarding
violations or alleged violations of any law by the Environmental
Protection Agency, Federal Trade Commission, Food & Drug Administration,
or similar federal, state, or local agency, and has not been found (or the
subject of an allegation) by such agency to be
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in violation of any law. MOJAVE SOUTHERN has never been a party to any
illegal or improper payments.
4.7 Financial Statements; SEC Reports.
(a) Each set of audited financial statements (including, in each
case, any related notes thereto) contained in the MOJAVE SOUTHERN
financial statements was prepared in accordance with GAAP (including,
without limitation, in accordance with the revenue recognition provisions
thereof) applied on a consistent basis throughout the periods involved
(except as may be indicated in the notes thereto or, in the case of
unaudited statements, do not contain footnotes as permitted by Form 10-K
of the Exchange Act) and each fairly presents the consolidated financial
position of MOJAVE SOUTHERN and its subsidiary as at the respective dates
thereof and the consolidated results of its operations and cash flows for
the periods indicated, except that the unaudited interim financial
statements were or are subject to normal adjustments which were not or are
not expected to be material in amount.
(b) MOJAVE SOUTHERN has filed all required registration
statements, prospectuses, reports, schedules, forms, statements and other
documents (including exhibits and all other information incorporated
therein) with the SEC since January 1, 2000, (the "MOJAVE SOUTHERN SEC
Documents"). As of their respective dates, the MOJAVE SOUTHERN SEC
Documents complied in all material respects with the requirements of the
Securities Act and the Exchange Act, and the rules and regulations of the
SEC promulgated thereunder applicable to such MOJAVE SOUTHERN SEC
Documents, and none of the MOJAVE SOUTHERN SEC Documents when filed
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading. The financial statements of MOJAVE SOUTHERN
included in the MOJAVE SOUTHERN SEC Documents comply as to form and
substance, as of their respective dates of filing with the SEC, in all
material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto.
(c) The unaudited consolidated financial statements of MOJAVE
SOUTHERN for the three (3) months ended March 31, 2002, which are included
in the MOJAVE SOUTHERN SEC Documents, have previously been made available
to the Company. The Financial Statements comply as to form and substance
in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto.
4.8 No Undisclosed Liabilities. MOJAVE SOUTHERN does not have any direct
or indirect liabilities (absolute, accrued, contingent or otherwise) of a nature
required to be disclosed on a balance sheet or in the related notes to the
consolidated financial statements prepared in accordance with GAAP (including,
without limitation, in accordance with the revenue
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recognition principles thereof) which are, individually or in the aggregate,
material to the business, results of operations or financial condition of MOJAVE
SOUTHERN taken as a whole, except (i) liabilities provided for in MOJAVE
SOUTHERN'S balance sheet as of Xxxxx 00, 0000, (xx) liabilities incurred since
March 31, 2002 in the ordinary course of business consistent with past practices
or (iii) banking, accounting, legal and printing fees associated with the
Acquisition. As of the Closing, MOJAVE SOUTHERN will have no assets or
liabilities.
4.9 Absence of Certain Changes or Events. Since its formation, except as
set forth in Section 4.9 of the MOJAVE SOUTHERN Disclosure Schedule, there has
not been: (i) any Material Adverse Effect on MOJAVE SOUTHERN, (ii) any
declaration, setting aside or payment of any dividend on, or other distribution
(whether in cash, stock or property) in respect of, any of MOJAVE SOUTHERN'S
capital stock, or any purchase, redemption or other MOJAVE SOUTHERN by MOJAVE
SOUTHERN of any of MOJAVE SOUTHERN'S capital stock or any other securities of
MOJAVE SOUTHERN or any options, warrants, calls or rights to acquire any such
shares or other securities, (iii) any split, combination or reclassification of
any of MOJAVE SOUTHERN'S capital stock, (iv) any granting by MOJAVE SOUTHERN of
any increase in compensation or fringe benefits, except for normal increases of
cash compensation in the ordinary course of business consistent with past
practice, or any payment by MOJAVE SOUTHERN of any bonus, except for bonuses
made in the ordinary course of business consistent with past practice, or any
granting by MOJAVE SOUTHERN of any increase in severance or termination pay or
any entry by MOJAVE SOUTHERN into any currently effective employment, severance,
termination or indemnification agreement or any agreement the benefits of which
are contingent or the terms of which are materially altered upon the occurrence
of a transaction involving MOJAVE SOUTHERN of the nature contemplated hereby,
(v) any material change by MOJAVE SOUTHERN in its accounting methods, principles
or practices, except as required by concurrent changes in GAAP, or (vi) any
revaluation by MOJAVE SOUTHERN of any of its assets, including, without
limitation, writing down the value of capitalized inventory or writing off notes
or accounts receivable other than in the ordinary course of business.
4.10 Absence of Litigation. Except as set forth in Section 4.10 of the
MOJAVE SOUTHERN Disclosure Schedule Reports, there are no material claims,
actions, suits or proceedings pending or, to the Knowledge of MOJAVE SOUTHERN,
threatened (or to the Knowledge of MOJAVE SOUTHERN, any governmental or
regulatory investigation pending or threatened) against MOJAVE SOUTHERN as to
which MOJAVE SOUTHERN or any subsidiary has received any written notice or
assertion, or any properties or rights of MOJAVE SOUTHERN or any subsidiary,
before any court, arbitrator or administrative, governmental or regulatory
authority or body, domestic or foreign. MOJAVE SOUTHERN is not subject to or in
violation or default under any outstanding order, injunction or decree.
4.11 Employee Benefit Plans. MOJAVE SOUTHERN is not a party to any oral or
written (i) contract for the employment of any officer or employee, (ii) profit
sharing, bonus, deferred compensation, pension or retirement plan, agreement or
arrangement, deferred compensation, incentive
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compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
medical or other plan, arrangement or understanding providing benefits to any
current or former employee, officer or director of MOJAVE SOUTHERN; or (iii)
collective bargaining agreement. The only employee fringe or benefit plan,
commitment or other arrangements (whether or not set forth in a written document
and including, without limitation, all "employee benefit plans" within the
meaning of Section 3(3) of ERISA that covers any active, former employee,
director or consultant of MOJAVE SOUTHERN, or with respect to which MOJAVE
SOUTHERN has or may in the future have liability, are listed in Section 4.11 of
the MOJAVE SOUTHERN Disclosure Schedule (the "MOJAVE SOUTHERN Plans") and the
MOJAVE SOUTHERN Plans are in compliance with ERISA. MOJAVE SOUTHERN has provided
to NYMA: (i) correct and complete copies of all documents embodying each MOJAVE
SOUTHERN Plan including (without limitation) all amendments thereto, all related
trust documents, and all material written agreements and contracts relating to
each such MOJAVE SOUTHERN Plan and any other information requested by NYMA
regarding the MOJAVE SOUTHERN Plan.
4.12 Labor Matters.
(a) There is no litigation pending or, to the Knowledge of
MOJAVE SOUTHERN, threatened, between MOJAVE SOUTHERN, its subsidiary and
any of their respective employees. As of the date of this Agreement,
MOJAVE SOUTHERN is not a party to any collective bargaining agreement or
other labor union contract applicable to Persons employed by MOJAVE
SOUTHERN nor does MOJAVE SOUTHERN know of any activities or proceedings of
any labor union to organize any such employees. As of the date of this
Agreement, MOJAVE SOUTHERN has no Knowledge of any strikes, slowdowns,
work stoppages or lockouts, or threats thereof, by or with respect to any
employees of MOJAVE SOUTHERN.
(b) Section 4.12 of the MOJAVE SOUTHERN Disclosure lists each
employee of MOJAVE SOUTHERN as well as the current position, the current
annual salary, the date of hire, any special arrangements including
retirement benefits, whether written or oral, with respect to each
employee, including any director or officer of MOJAVE SOUTHERN.
(c) To the Knowledge of MOJAVE SOUTHERN, MOJAVE SOUTHERN is in
compliance with all applicable laws regarding employment and employment
practices.
(d) No present or former employee or contracted employee of
MOJAVE SOUTHERN has asserted any claim against MOJAVE SOUTHERN and, to the
Knowledge of MOJAVE SOUTHERN no basis for any such claim exists.
4.13 Spin-off of Norden Associates, Inc. Prior to the Closing Date, MOJAVE
SOUTHERN will sell to Xxxxx Xxxxxx one hundred percent of the shares of capital
stock of Norden Associates, Inc. in consideration for the sum of
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$200.00 and the cancellation of 5,475,000 of her shares of common stock of
MOJAVE SOUTHERN as provided in paragraph 4.3 above.
4.14 Restrictions on Business Activities. There is no material agreement,
judgment, injunction, order or decree binding upon MOJAVE SOUTHERN which has or
could reasonably be expected to have the effect of prohibiting or materially
impairing any business practice of MOJAVE SOUTHERN, any MOJAVE SOUTHERN of
property by MOJAVE SOUTHERN or the conduct of business by MOJAVE SOUTHERN as
currently conducted.
4.15 Title to Property. MOJAVE SOUTHERN owns no real property. MOJAVE
SOUTHERN has good and marketable title to all of its material properties and
assets set forth in Section 4.15 of the MOJAVE SOUTHERN Disclosure Schedule,
free and clear of all liens, charges and encumbrances except liens for Taxes not
yet due and payable and such liens or other imperfections of title, if any, as
do not materially detract from the value of or interfere with the present use of
the property affected thereby; and all leases pursuant to which MOJAVE SOUTHERN
lease from others material amounts of real or personal property are in good
standing, valid and effective in accordance with their respective terms, and
there is not, under any of such leases, any existing material default or event
of default (or any event which with notice or lapse of time, or both, would
constitute a material default and in respect of which MOJAVE SOUTHERN has not
taken adequate steps to prevent such default from occurring). All the plants,
structures and equipment of MOJAVE SOUTHERN, are in good operating condition and
repair, in all material respects.
4.16 Taxes.
(a) MOJAVE SOUTHERN and its subsidiary have filed all Tax
Returns required to be filed by it (other than those that are not,
individually or in the aggregate, material) and all such returns and
reports are complete and correct in all respects, and any requests for
extensions to file such returns or reports have been timely filed, granted
and have not expired, and MOJAVE SOUTHERN and its subsidiary have paid all
Taxes shown thereon to be due and have provided adequate accruals in all
material respects in accordance with GAAP in its financial statements for
any Taxes that have not been paid, whether or not shown as being due on
any returns. Each of MOJAVE SOUTHERN and its subsidiary has withheld and
paid all Taxes required to be withheld and paid in connection with amounts
paid or owing to any employee, independent contractor, creditor,
stockholder or third party. In addition, (i) no material claim for unpaid
Taxes that are currently, or will be prior to the Closing Date, due and
payable has become a lien against the property of MOJAVE SOUTHERN or is
being asserted against MOJAVE SOUTHERN, (ii) no audit of any material Tax
Return of MOJAVE SOUTHERN is being conducted by a tax authority, (iii) no
extension of the statute of limitations on the assessment of any Taxes has
been granted by MOJAVE SOUTHERN or any of its subsidiaries and is
currently in effect and (iv) there is no agreement, contract or
arrangement to which MOJAVE SOUTHERN is a party that may result in the
payment of any amount that would not be deductible pursuant to
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Sections 280G, 162(a) (by reason of being unreasonable in amount), 162(b)
through (p) or 404 of the Code.
(b) No director or officer (or employee responsible for tax
matters) of MOJAVE SOUTHERN or its subsidiary expects any authority to
assess any additional taxes for any period for which Tax Returns have been
filed. There is no dispute or claim concerning any Tax liability of MOJAVE
SOUTHERN or its subsidiary, either: (A) claimed or raised by any authority
in writing, or (B) as to which the directors and officers (and employees
responsible for tax matters) of such corporation has Knowledge based upon
personal contact with any agent of such authority. Section 4.16(b) of the
MOJAVE SOUTHERN Disclosure Schedule lists all federal, state, local, and
foreign income Tax Returns filed with respect to each of MOJAVE SOUTHERN
and its subsidiary and with respect to both of them on a consolidated or
other basis for taxable periods ended on or after January 1, 1999, 2000,
and 2001, indicates those Tax Returns that have been audited, and
indicates those Tax Returns that currently are the subject of audit. Each
of MOJAVE SOUTHERN and its subsidiary has delivered to NYMA correct and
complete copies of all federal income Tax Returns, examination reports,
and statements of deficiencies assessed against or agreed to by either
MOJAVE SOUTHERN or its subsidiaries since January 1, 1999.
(c) Neither MOJAVE SOUTHERN nor its subsidiary has waived any
statute of limitations with respect to Taxes or agreed to any extension of
time with respect to a Tax assessment or deficiency.
(d) The unpaid Taxes of MOJAVE SOUTHERN and its subsidiary,
respectively, (i) did not, as of January 1, 2002 or the date of the most
recent fiscal month-end of MOJAVE SOUTHERN and its subsidiary, exceed the
reserve for Tax liability (rather than any reserve for deferred Taxes
established to reflect timing differences between book and Tax income) set
forth on the face of the balance sheet for such fiscal month end (rather
than in any notes thereto) and (ii) do not exceed that reserve as adjusted
for the passage of time through the Closing Date in accordance with the
past custom and practice of MOJAVE SOUTHERN or its subsidiary in filing
its Tax Returns.
4.17 Environmental Matters. MOJAVE SOUTHERN (i) has obtained all
applicable permits, licenses and other authorizations which are material to the
business of MOJAVE SOUTHERN and required under federal, state or local laws
relating to pollution or protection of the environment, including laws relating
to emissions, discharges, releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials or wastes into ambient air,
surface water, ground water, or land or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants or hazardous or toxic materials or wastes
by MOJAVE SOUTHERN (or its respective agents); (ii) are in material compliance
with all terms and conditions of such required permits, licenses and
authorizations, and also are in compliance
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with all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in such laws or
contained in any regulation, code, plan, order, decree, judgment, notice or
demand letter issued, entered, promulgated or approved thereunder; (iii) as of
the date hereof, are not aware of nor have received notice of any event,
condition, circumstance, activity, practice, incident, action or plan which is
reasonably likely to interfere with or prevent continued material compliance or
which would give rise to any material common law or statutory liability, or
otherwise form the basis of any claim, action, suit or proceeding, based on or
resulting from MOJAVE SOUTHERN'S (or any of its respective agents) manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, or release into the environment, of any
pollutant, contaminant, or hazardous or toxic material or waste; and (iv) have
taken all actions necessary under applicable requirements of federal, state or
local laws, rules or regulations to register any products or materials required
to be registered by MOJAVE SOUTHERN (or any of its respective agents)
thereunder.
4.18 Intangible Assets. Section 4.18 of the MOJAVE SOUTHERN Disclosure
Schedule contains a true and complete list of all patents and patent
applications (pending or in the process of preparation), domestic or foreign,
patent rights, trademarks, trade names and licenses under the patents of others,
trade secrets, secret processes and other proprietary rights of every kind and
nature used or necessary for use by MOJAVE SOUTHERN in its business as presently
conducted, or controlled in whole or in part by MOJAVE SOUTHERN or directly or
indirectly owned or controlled in whole or in part by MOJAVE SOUTHERN or any of
MOJAVE SOUTHERN'S officers, directors or key employees. All such patents, patent
applications, patent rights and licenses are valid and effective in accordance
with their terms, and all such trade names, trade secrets, secret processes and
other proprietary rights are valid and effective. The conduct of MOJAVE
SOUTHERN'S business does not infringe upon the patents, trademarks, trade
secrets, or copyrights or other intellectual property rights, of any other
party. MOJAVE SOUTHERN has not received any notice of any claim of infringement.
Except as disclosed in Section 4.18 of the MOJAVE SOUTHERN Disclosure Schedule,
there are no agreements, contracts or obligations under which MOJAVE SOUTHERN is
obligated with respect to, or is using, any patents, patent applications, patent
rights, trademarks, trade names, licenses under the patents of others, trade
secrets, secret processes or other proprietary rights. The trade secrets and
"know-how" of MOJAVE SOUTHERN are in such form and of such quality that,
following the Closing, MOJAVE SOUTHERN will be able to continue to sell the
products heretofore provided by MOJAVE SOUTHERN.
4.19 Agreements, Contracts and Commitments. Section 4.19 of the MOJAVE
SOUTHERN Disclosure Schedule contains a true and correct list of all material
contracts, agreements or other understandings or arrangements, written or oral,
or commitments therefore, relating to MOJAVE SOUTHERN, its business and assets
or liabilities (collectively, the "MOJAVE SOUTHERN Contracts"). Except as set
forth in Section 4.19 of the MOJAVE SOUTHERN Disclosure Schedule, MOJAVE
SOUTHERN is not a party to and is not bound by:
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(a) Any employment or consulting agreement, contract or
commitment with any officer, director or member of MOJAVE SOUTHERN'S Board
of Directors;
(b) Any agreement or plan, including, without limitation, any
stock option plan, stock appreciation right plan or stock purchase plan,
any of the benefits of which will be increased, or the vesting of benefits
of which will be accelerated, by the occurrence of any of the transactions
contemplated by this Agreement or the value of any of the benefits of
which will be calculated on the basis of any of the transactions
contemplated by this Agreement;
(c) Any agreement, contract or commitment containing any
covenant limiting in any respect the right of MOJAVE SOUTHERN to engage in
any line of business or to compete with any Person or granting any
exclusive distribution rights;
(d) Any agreement, contract or commitment currently in force
relating to the disposition or Acquisition by MOJAVE SOUTHERN after the
date of this Agreement of a material amount of assets not in the ordinary
course of business or pursuant to which MOJAVE SOUTHERN has any material
ownership interest in any corporation, partnership, joint venture or other
business enterprise; or
(e) Any material contract (as such term is defined in item
601(b)(10) of Regulation S-K of the SEC) of MOJAVE SOUTHERN.
MOJAVE SOUTHERN is not and, to MOJAVE SOUTHERN'S Knowledge, no other
party to a MOJAVE SOUTHERN Contract, is in breach, violation or default
under, and MOJAVE SOUTHERN has not received written notice that it has
breached, violated or defaulted under, any of the material terms or
conditions of any of the MOJAVE SOUTHERN Contracts in such a manner as
would permit any other party to cancel or terminate any such MOJAVE
SOUTHERN Contract, or would permit any other party to seek material
damages or other remedies (for any or all of such breaches, violations or
defaults, in the aggregate). Each MOJAVE SOUTHERN Contract is valid and
binding on MOJAVE SOUTHERN and is in full force and effect, and MOJAVE
SOUTHERN has in all material respects performed all obligations required
to be performed by them to date under each MOJAVE SOUTHERN Contract,
except where such noncompliance, individually or in the aggregate, would
not have a Material Adverse Effect on MOJAVE SOUTHERN. Except as set forth
on Section 4.19(e) of the MOJAVE SOUTHERN Disclosure Schedule: (i) MOJAVE
SOUTHERN maintains a good business relationship with each of its customers
and suppliers, and to the Knowledge of MOJAVE SOUTHERN, no material
unresolved complaint or dispute presently exists and no customer or
supplier is considering or intends to cease doing business with MOJAVE
SOUTHERN during the twelve (12) month period beginning the date hereof;
(ii) during the twelve (12) month period preceding the date hereof, no
material contract or agreement of MOJAVE SOUTHERN was terminated, expired,
or not renewed; and (iii) during the twelve (12) month period preceding
the date hereof, no material supplier or customer of MOJAVE
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SOUTHERN has ceased doing business with MOJAVE SOUTHERN, as the case may
be.
4.20 MOJAVE SOUTHERN does not carry any insurance. Prior to the Closing
Date, MOJAVE SOUTHERN and NYMA shall agree upon appropriate insurance and
coverage.
4.21 Directors, Officers and Affiliates. Section 4.21 of the MOJAVE
SOUTHERN Disclosure Schedule contains a complete list of the current Board of
Directors and executive officers of MOJAVE SOUTHERN and all Persons who are an
Affiliate of MOJAVE SOUTHERN.
4.22 Prior Sales. Section 4.22 of the MOJAVE SOUTHERN Disclosure Schedule
contains a true, correct and complete current list of the names and addresses of
the purchasers of any securities of MOJAVE SOUTHERN that have been privately
offered and sold by MOJAVE SOUTHERN within the last two years from the date of
this Agreement, the prices paid by the purchasers of those securities, the
rights of such shareholders and a brief description of the facts upon which
MOJAVE SOUTHERN relied in claiming an exemption from the registration
requirements of the state and federal securities laws in making those sales.
4.23 Corporate Record Books. The books and records of MOJAVE SOUTHERN are
in good order, complete, accurate, up to date, with all necessary signatures,
and set forth all meetings and actions set forth in all certificates of votes of
stockholders or directors furnished to anyone at any time.
4.24 Related Party Transactions. Except as set forth in Section 4.24 of
the MOJAVE SOUTHERN Disclosure Schedule, neither any officer nor any director or
employee of MOJAVE SOUTHERN, nor any spouse or child of any of them, has any
direct or indirect interest in any competitor, supplier, or customer of MOJAVE
SOUTHERN or in any Person from whom or to whom MOJAVE SOUTHERN leases any real
or personal property, or in any other Person with whom MOJAVE SOUTHERN is doing
business.
4.25 Lack of Disputes. There is currently no dispute, pending or, to the
Knowledge of MOJAVE SOUTHERN, threatened, anticipated or contemplated of any
kind with any customer, supplier, source of financing, employee, landlord, or
licensee of MOJAVE SOUTHERN.
4.26 Board Approval. The Board of Directors of MOJAVE SOUTHERN has, as of
the date hereof, (i) approved this Agreement, the Acquisition and the
transactions contemplated hereby and (ii) determined that the Acquisition is in
the best interests of the stockholders of MOJAVE SOUTHERN and is on terms that
are fair to such stockholders.
4.27 Disclosures. None of the information supplied or to be supplied by
MOJAVE SOUTHERN specifically for inclusion or incorporation by reference in any
registration statements, prospectuses, reports, schedules or other documents to
be filed with the SEC or any other governmental entity and no written disclosure
of written statement of fact furnished or to be furnished
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by MOJAVE SOUTHERN to NYMA pursuant to this Agreement or pursuant to NYMA's due
diligence, shall contain any untrue statement of a material fact or omits or
will omit to state any item or any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. All SEC Filings will
comply as to form and substance in all material respects with the requirements
of the Securities Act and the Exchange Act and the rules and regulations
thereunder, except that no representation or warranty is made by MOJAVE SOUTHERN
with respect to statements made or incorporated by reference therein based on
information supplied by NYMA specifically for inclusion or incorporation by
reference in any subsequent SEC Filing.
ARTICLE 5
CONDUCT PRIOR TO THE CLOSING DATE
5.1 Conduct of Business By NYMA. During the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
pursuant to its terms or the Closing Date, NYMA shall, except to the extent that
MOJAVE SOUTHERN shall otherwise consent in writing, carry on its business, in
all material respects, in the usual, regular and ordinary course, in
substantially the same manner as heretofore conducted and in compliance with all
applicable laws and regulations, pay its debts and Taxes when due subject to
good faith disputes over such debts or Taxes, pay or perform other material
obligations when due, and use its commercially reasonable efforts consistent
with past practices and policies to (i) preserve intact its present business
organization, (ii) keep available the services of its present officers and
employees and (iii) preserve its relationships with customers, suppliers,
distributors, licensors, licensees, and others with which it has business
dealings.
In addition, except as permitted by the terms of this Agreement, and
except as provided in Section 5.1 of the NYMA Disclosure Schedule, without
the prior written consent of MOJAVE SOUTHERN, which consent will not be
unreasonably withheld or delayed, during the period from the date of this
Agreement and continuing until the earlier of the termination of this
Agreement pursuant to its terms or the Closing Date, NYMA shall not do any
of the following:
(a) Grant any severance or termination pay to any officer or
employee of NYMA except pursuant to written agreements outstanding, or
policies existing, on the date hereof and as previously disclosed in
writing or made available to MOJAVE SOUTHERN, or adopt any new severance
plan;
(b) Incur any indebtedness for borrowed money or guarantee any
such indebtedness of another Person, issue or sell any debt securities or
options, warrants, calls or other rights to acquire any debt securities of
NYMA other than (i) in connection with the financing of ordinary course
trade payables consistent with past practice or (ii) in the ordinary
course of business;
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(c) Make any individual or series of related payments outside of
the ordinary course of business in excess of $50,000, other than banking,
accounting, legal and printing fees associated with the Acquisition;
(d) Except in the ordinary course of business, modify, amend or
terminate any material contract or agreement to which NYMA is a party or
waive, release or assign any material rights or claims there under;
(e) Materially revalue any of its assets or, except as required
by GAAP, make any change in accounting methods, principles or practices;
(f) Engage in any action with the intent to directly or
indirectly adversely impact any of the transactions contemplated by this
Agreement; or
(g) Agree in writing or otherwise to take any of the actions
described in subsections (a) through (f) above.
5.2 Conduct of Business by MOJAVE SOUTHERN.
(a) During the period from the date of this Agreement and
continuing until the earlier of the termination of this Agreement pursuant
to its terms or the Closing Date, MOJAVE SOUTHERN shall, except to the
extent that NYMA shall otherwise consent in writing, carry on its
business, in all material respects, in the usual, regular and ordinary
course, in substantially the same manner as heretofore conducted and in
compliance with all applicable laws and regulations, pay its debts and
Taxes when due subject to good faith disputes over such debts or Taxes,
and pay or perform other material obligations when due and use its
commercially reasonable efforts consistent with past practices and
policies to (i) preserve intact its present business organization, (ii)
keep available the services of its present officers and employees and
(iii) preserve its relationships with customers, suppliers, distributors,
licensors, licensees, and others with which it has business dealings.
(b) In addition, except as permitted by the terms of this
Agreement, without the prior written consent of NYMA, which consent will
not be unreasonably withheld or delayed, during the period from the date
of this Agreement and continuing until the earlier of the termination of
this Agreement pursuant to its terms or the Closing Date, MOJAVE SOUTHERN
shall not do any of the following and shall not permit its subsidiaries to
do any of the following:
(1) Grant any stock options;
(2) Grant any severance or termination pay to any officer
or employee except pursuant to written agreements outstanding,
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or policies existing, on the date hereof and as previously disclosed in
writing or made available to NYMA, or adopt any new severance plan;
(3) Declare, set aside or pay any dividends on or make any
other distributions (whether in cash, stock, equity securities or
property) in respect of any capital stock or split, combine or reclassify
any capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for any capital
stock;
(4) Issue, deliver, sell, authorize, pledge or otherwise
encumber or propose any of the foregoing of, any shares of capital stock
or any securities convertible into shares of capital stock, or
subscriptions, rights, warrants or options to acquire any shares of
capital stock or any securities convertible into shares of capital stock,
or enter into other agreements or commitments of any character obligating
it to issue any such shares or convertible securities, other than the
issuance delivery and/or sale of shares of MOJAVE SOUTHERN Common Stock
pursuant to the exercise of stock options or warrants therefore
outstanding as of the date of this Agreement;
(5) Cause, permit or propose any amendments to its Articles
of Incorporation or Bylaws;
(6) Sell, lease, license, mortgage, encumber or subject to
any lien or otherwise dispose of any properties or assets of MOJAVE
SOUTHERN;
(7) Create, incur or assume any indebtedness for borrowed
money or guarantee any such indebtedness of another Person, issue or sell
any debt securities or options, warrants, calls or other rights to acquire
any debt securities of MOJAVE SOUTHERN;
(8) Adopt or amend any employee benefit plan or employee
stock purchase or employee stock option plan, or enter into any employment
contract or collective bargaining agreement, pay any special bonus or
special remuneration to any director or employee, or increase the salaries
or wage rates or fringe benefits (including rights to severance or
indemnification) of its directors, officers, employees or consultants
other than in the ordinary course of business, consistent with past
practice, or change in any material respect any management policies or
procedures;
(9) Make any individual or series of related payments
outside of the ordinary course of business in excess of $1,000, other than
banking, accounting, legal and printing fees associated with the
Acquisition;
(10) Except in the ordinary course of business, modify,
amend or terminate any material contract or agreement to which MOJAVE
SOUTHERN is a party or waive, release or assign any material rights or
claims thereunder;
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(11) Materially revalue any of its assets or, except as
required by GAAP, make any change in accounting methods, principles or
practices;
(12) Engage in any action that could reasonably be expected
to cause the Acquisition to fail to qualify as a "reorganization" under
Section 368(a)(1)(B) of the Code;
(13) Acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial portion of the assets
of, or by any other manner, any business or any Person;
(14) Engage in any action with the intent to directly or
indirectly adversely impact any of the transactions contemplated by this
Agreement; or
(15) Agree in writing or otherwise to take any of the
actions described in subsections (1) through (14) above.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 Filings; Board Recommendations. As promptly as practicable after the
date of this Agreement, each of NYMA and MOJAVE SOUTHERN will prepare and file
any filings required to be filed by it under the Exchange Act, the Securities
Act or any other federal, foreign or state securities or related laws relating
to the Acquisition and the transactions contemplated by this Agreement.
Specifically, but not by way of limitation, promptly following the execution and
delivery of this Agreement, but no later than five (5) Business Days following
the date hereof MOJAVE SOUTHERN shall prepare and file a notice pursuant to Rule
14f-1, and one or more Forms 8-K describing the Acquisition of NYMA with respect
to the transactions contemplated by this Agreement in accordance with all
applicable rules and regulations of the Exchange Act. Not less than five (5)
Business Days prior to the filing with the SEC, MOJAVE SOUTHERN shall permit
NYMA and its legal counsel to review the filing and make suggested revisions
thereto. MOJAVE SOUTHERN shall mail the notice pursuant to Rule 14f-1 to each
MOJAVE SOUTHERN shareholder in accordance with all applicable rules and
regulations of the 1934 Act and the Delaware Code. Each of NYMA and MOJAVE
SOUTHERN will notify the other promptly upon the receipt of any comments from
the SEC or its staff or any other government officials and of any request by the
SEC or its staff or any other government officials for amendments or supplements
to any Filing or for additional information and will supply the other with
copies of all correspondence between such party or any of its representatives,
on the one hand, and the SEC, or its staff or any other government officials, on
the other hand, with respect to the Acquisition or any Filing. Each of NYMA and
MOJAVE SOUTHERN will cause all documents that it is responsible for filing with
the SEC or other regulatory authorities under this Section 6.1 to comply in
all-material respects with all applicable requirements of law and the rules and
regulations promulgated
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thereunder. Whenever any event occurs which is required to be set forth in an
amendment or supplement to any Filing, NYMA or MOJAVE SOUTHERN, as the case may
be, will promptly inform the other of such occurrence and cooperate in filing
with the SEC or its staff or any other government officials, and/or mailing to
stockholders of MOJAVE SOUTHERN, such amendment or supplement.
6.2 Confidentiality; Access to Information.
(a) Access to NYMA Information. NYMA will afford MOJAVE SOUTHERN
and its accountants, counsel and other representatives reasonable access
during normal business hours to the properties, books, records and
personnel of NYMA during the period prior to the Closing Date to obtain
all information concerning the business of NYMA as MOJAVE SOUTHERN may
reasonably request. No information or Knowledge obtained by MOJAVE
SOUTHERN in any investigation pursuant to this Section will affect or be
deemed to modify any representation or warranty contained herein or the
conditions to the obligations of the parties to consummate the MOJAVE
SOUTHERN.
(b) Access to MOJAVE SOUTHERN Information. MOJAVE SOUTHERN will
afford NYMA and its accountants, counsel and other representatives
reasonable access during normal business hours to the properties, books,
records and personnel of MOJAVE SOUTHERN during the period prior to the
Closing Date to obtain all information concerning the business of MOJAVE
SOUTHERN as NYMA may reasonably request. No information or Knowledge
obtained by NYMA in any investigation pursuant to this Section will affect
or be deemed to modify any representation or warranty contained herein or
the conditions to the obligations of the parties to consummate the
Acquisition.
(c) Confidentiality. MOJAVE SOUTHERN AND NYMA shall hold, and
shall use their best efforts to cause their respective officers,
directors, partners, prospective lenders, financial advisors, counsel and
other agents to hold, in strict confidence, unless compelled to disclose
by judicial or administrative process, or, in the opinion of their
counsel, by other requirements of law, all documents and information
concerning the MOJAVE SOUTHERN or NYMA, as the case may be, furnished to
the other in connection with the transactions contemplated by this
Agreement (except to the extent that such information can be shown to have
been (i) in the public domain through no fault of MOJAVE SOUTHERN or NYMA,
or any of their respective Affiliates; or (ii) later lawfully acquired
without the breach of any other agreement by MOJAVE SOUTHERN or NYMA or
their respective officers, directors, partners, financial advisors,
counsel and other agents from other sources), and will not release or
disclose such information to any other Person, except its officers,
directors, prospective lenders, financial advisors, counsel and other
agents in connection with this Agreement. If the transactions contemplated
by this Agreement are not consummated, such confidence shall be maintained
as hereinbefore provided for a period of two (2) years and, if requested
by MOJAVE SOUTHERN or NYMA, as the case may be, the
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other(s) will, and will cause its officers, directors, partners,
prospective lenders, financial advisors, counsel and other agents to,
return to MOJAVE SOUTHERN or NYMA all copies of written information
furnished by or on behalf of MOJAVE SOUTHERN or NYMA to the other(s) or
their respective officers, directors, prospective lenders, financial
advisors, counsel and other agents.
6.3 Public Disclosure. MOJAVE SOUTHERN and NYMA agree that all general
notice releases, statements and communications to the general public and the
press relating to the transactions contemplated by this Agreement, shall be made
only at such time and in such manner as shall be mutually agreed upon by them;
provided, however, that any party shall be entitled to make public announcements
of the proposed transaction if, in the opinion of its counsel, such announcement
is required to comply with any applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange and such
party shall to the extent practicable, consult with the other party hereto with
respect to such announcement and give reasonable prior notice of its intent to
issue such announcement.
6.4 Best Efforts; Notification.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to use best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the
most expeditious manner practicable, the Acquisition and the other
transactions contemplated by this Agreement, including using reasonable
efforts to accomplish the following: (i) the taking of all reasonable acts
necessary to cause the conditions precedent set forth in Article 7 to be
satisfied, (ii) the obtaining of all necessary actions or nonactions,
waivers, consents, approvals, orders and authorizations from Governmental
Entities and the making of all necessary registrations, declarations and
filings (including registrations, declarations and filings with
Governmental Entities, if any) and the taking of all reasonable steps as
may be necessary to avoid any suit, claim, action, investigation or
proceeding by any Governmental Entity, (iii) the defending of any suits,
claims, actions, investigations or proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental
Entity vacated or reversed and (iv) the execution or delivery of any
additional instruments necessary to consummate the transactions
contemplated by, and to fully carry out the purposes of, this Agreement.
In connection with and without limiting the foregoing, each of MOJAVE
SOUTHERN and NYMA and its Board of Directors shall, if any state takeover
statute or similar statute or regulation is or becomes applicable to the
Acquisition, this Agreement or any of the transactions contemplated by
this Agreement, use best efforts to ensure that the Acquisition and the
other transactions contemplated by
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this Agreement may be consummated as promptly as practicable on the terms
contemplated by this Agreement and otherwise to minimize the effect of
such statute or regulation on the Acquisition, this Agreement and the
transactions contemplated hereby. Notwithstanding anything herein to the
contrary, nothing in this Agreement shall be deemed to require MOJAVE
SOUTHERN or NYMA or any subsidiary or Affiliate thereof to agree to any
divestiture by itself or any of its Affiliates of shares of capital stock
or of any business, assets or property, or the imposition of any material
limitation on the ability of any of them to conduct their businesses or to
own or exercise control of such assets, properties and stock.
(b) NYMA shall give prompt notice to MOJAVE SOUTHERN of any
representation or warranty made by either contained in this Agreement
becoming untrue or inaccurate, or any failure of NYMA to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement, in each case, such
that the conditions set forth in Section 7.3(a) or 7.3(b) would not be
satisfied, provided, however, that no such notification shall affect the
representations, warranties, covenants or agreements of the parties or the
conditions to the obligations of the parties under this Agreement.
(c) MOJAVE SOUTHERN shall give prompt notice to NYMA of any
representation or warranty made by it contained in this Agreement becoming
untrue or inaccurate, or any failure of MOJAVE SOUTHERN to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement, in each case, such
that the conditions set forth in Section 7.2(a) or 7.2(b) would not be
satisfied, provided, however, that no such notification shall affect the
representations, warranties, covenants or agreements of the parties or the
conditions to the obligations of the parties under this Agreement.
6.5 Third Party Consents. As soon as practicable following the date
hereof, MOJAVE SOUTHERN and NYMA will each use their commercially reasonable
efforts to obtain any consents, waivers and approvals under any of their or
their subsidiaries' respective agreements, contracts, licenses or leases
required to be obtained in connection with the consummation of the transactions
contemplated hereby, including the consent and stock powers of the NYMA
SHAREHOLDERS.
6.6 NYMA Investment Agreement. Each NYMA SHAREHOLDER hereby agrees that
the shares of MOJAVE Common Stock to be issued to such NYMA Shareholder upon the
consummation of the transaction provided for in this Agreement are being
acquired for investment and not with a view to the distribution thereof and will
be held by such shareholders until a sale may be made under the terms of
applicable laws and rules of the Securities and Exchange Commission MOJAVE
SOUTHERN will place an appropriate legend on the certificate evidencing MOJAVE
SOUTHERN Common Stock to be received by NYMA SHAREHOLDERS pursuant to the terms
of this Agreement, and will issue appropriate stop transfer instructions to the
transfer agent for the MOJAVE
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XXXXXXXX Xxxxxx Stock, consistent with the terms of the NYMA Investment
Agreement.
6.7 Comfort Letter of MOJAVE SOUTHERN'S Auditors. Prior to the Closing,
MOJAVE SOUTHERN shall cause Xxxx Xxxxxxx, C.P.A., certified public accountant to
MOJAVE SOUTHERN, to provide a letter reasonably acceptable to NYMA, relating to
their audit of the financial statements relating to MOJAVE SOUTHERN contained in
or incorporated by reference in the MOJAVE SOUTHERN annual report on Form
10-KSB.
6.8 Comfort Letter of NYMA's Auditors. Prior to the Closing, NYMA shall
cause the certified public accountants to NYMA, to provide a letter reasonably
acceptable to MOJAVE SOUTHERN, relating to their forthcoming audit of the
financial statements relating to NYMA contained in or incorporated by reference
in any public filings of MOJAVE SOUTHERN.
6.9 NYMA Accountants' Consent. NYMA shall cause their certified public
accountants to provide, upon request, an accountants' consent for the inclusion,
in any filings, of audit report(s) for the periods required to be included in
such filings (irrespective of whether an audit for such period is required under
SEC rules).
6.10 No Solicitation by MOJAVE SOUTHERN. MOJAVE SOUTHERN shall not, nor
shall it permit any of its subsidiaries to, nor shall it authorize or permit any
of its directors, officers or employees or any investment banker, financial
advisor, agents, attorney, partners, accountant or other representative retained
by it or any of its subsidiaries to, directly or indirectly through another
Person, (i) solicit, initiate or encourage (including by way of furnishing
information), or take any other action designed to facilitate, any inquiries or
the making of any proposal which constitutes any MOJAVE SOUTHERN Takeover
Proposal (as defined below) or (ii) participate in any discussions or
negotiations or furnish any nonpublic information to any Person other than NYMA
and their representatives in connection with any MOJAVE SOUTHERN Takeover
Proposal. For purposes of this Agreement, "MOJAVE SOUTHERN Takeover Proposal"
means any inquiry, proposal or offer from any Person relating to any direct or
indirect acquisition or purchase of a business that constitutes 50% or more of
the net revenues, net income or the assets of MOJAVE SOUTHERN and its
subsidiaries, taken as a whole, or 10% or more of any class of equity securities
of MOJAVE SOUTHERN, any tender offer, exchange offer or other transactions that
if consummated would result in any Person beneficially owning 10% or more of any
class of equity securities of MOJAVE SOUTHERN, or any merger, consolidation,
business combination, recapitalization, liquidation, dissolution or similar
transaction involving MOJAVE SOUTHERN or the MOJAVE SOUTHERN capital stock (or
any MOJAVE SOUTHERN subsidiary whose business constitutes 50% or more of the net
revenues, net income or the assets of MOJAVE SOUTHERN and its subsidiaries,
taken as a whole), other than the transactions contemplated by this Agreement.
6.11 Bulletin Board Listing. MOJAVE SOUTHERN shall use its best efforts to
maintain the listing of its shares of common stock on the NASD OTC Bulletin
Board.
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6.12 MOJAVE SOUTHERN Liabilities. MOJAVE SOUTHERN shall terminate and
extinguish all direct, indirect, short term, long term, xxxxxx, unchoate,
contingent, unmatured, matured, known and unknown liabilities (collectively,
"Liabilities") and all other obligations of MOJAVE SOUTHERN in form and
substance satisfactory to NYMA.
6.13 POST-ACQUISITION OPERATIONS. Following the Closing Date, all bank
accounts of Mojave Southern shall be amended so that two nominees of NYMA shall
be the only signatories with authority to engage in transactions for such
accounts.
6.14 REGISTRATION OF SHARES. MOJAVE SOUTHERN shall file within ninety (90)
days following the Closing Date a registration statement on an appropriate form
of the SEC for the registration of 10,349,062 shares owned by NYMA and the NYMA
Shareholders.
6.15 SHAREHOLDER APPROVAL. NYMA, acting through its Board of Directors,
shall convene and hold a special meeting of its stockholders or otherwise
solicit written consents for the purpose of considering and taking action upon
this Agreement in accordance with the bylaws of NYMA.
6.16 Financial Statements. Prior to the Closing, NYMA shall deliver to
MOJAVE SOUTHERN (i) unaudited financial statements for the six (6) months ending
June 30, 2002 (the "Financial Statements"). The Financial Statements will be
prepared accordance with the books and records of NYMA and will present fairly
in all material respects the financial position and results of operations of
NYMA as of the times and for the periods referred to therein, in each case in
accordance with GAAP.
ARTICLE 7
CONDITIONS TO THE ACQUISITION
7.1 Conditions to Obligations of Each Party to Effect the Acquisition. The
respective obligations of each party to this Agreement to effect the Acquisition
shall be subject to the satisfaction at or prior to the Closing Date of the
following condition:
(a) No Order. No Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, executive
order, decree, injunction or other order (whether temporary, preliminary
or permanent) which is in effect and which has the effect of making the
Acquisition illegal or otherwise prohibiting consummation of the
Acquisition.
7.2 Additional Conditions to Obligations of NYMA. The obligation of NYMA
to consummate and effect the Acquisition shall be subject to the satisfaction at
or prior to the Closing Date of each of the following conditions, any of which
may be waived, in writing, exclusively by NYMA:
(a) Representations and Warranties. Each representation and
warranty of MOJAVE SOUTHERN contained in this Agreement (i) shall
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have been true and correct as of the date of this Agreement and (ii) shall
be true and correct on and as of the Closing Date with the same force and
effect as if made on the Closing Date except, (A) in each case, or in the
aggregate, as does not constitute a Material Adverse Effect on MOJAVE
SOUTHERN, (B) for changes contemplated by this Agreement and (C) for those
representations and warranties which address matters only as of a
particular date (which representations shall have been true and correct
except as does not constitute a Material Adverse Effect on MOJAVE SOUTHERN
as of such particular date) (it being understood that, for purposes of
determining the accuracy of such representations and warranties, (i) all
"Material Adverse Effect" qualifications and other qualifications based on
the word "material" or similar phrases contained in such representations
and warranties shall be disregarded and (ii) any update of or modification
to the MOJAVE SOUTHERN Disclosure Schedule made or purported to have been
made after the date of this Agreement shall be disregarded). NYMA shall
have received a certificate with respect to the foregoing signed on behalf
of MOJAVE SOUTHERN by an authorized officer of MOJAVE SOUTHERN.
(b) Agreements and Covenants. MOJAVE SOUTHERN shall have
performed or complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by
it on or prior to the Closing Date, and NYMA shall have received a
certificate to such effect signed on behalf of MOJAVE SOUTHERN by an
authorized officer of MOJAVE SOUTHERN.
(c) Material Adverse Effect. No Material Adverse Effect with
respect to MOJAVE SOUTHERN shall have occurred since the date of this
Agreement.
(d) SHAREHOLDERS' Signatures. NYMA SHAREHOLDERS owning at least
90% of NYMA's issued and outstanding common stock shall sign this
Agreement, and shall have presented stock powers and other documents as
needed to transfer their NYMA stock to MOJAVE SOUTHERN, with signature(s)
notarized or guaranteed.
(e) Quotation on Bulletin Board. The shares of the MOJAVE
SOUTHERN Common Stock shall be quoted for trading on the NASD OTC Bulletin
Board without restriction or qualification.
(f) MOJAVE SOUTHERN Liabilities. All MOJAVE SOUTHERN Liabilities
shall have been terminated and extinguished in form and substance
satisfactory to NYMA.
(g) Officer and Directors. MOJAVE SOUTHERN shall have accepted
the resignations of all existing officers of MOJAVE SOUTHERN.
(h) Good Standing Certificate. MOJAVE SOUTHERN shall deliver
such certificates and documents of officers of MOJAVE SOUTHERN and public
officials as shall be reasonably requested by NYMA's counsel to establish
the existence and good standing of MOJAVE
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SOUTHERN and the due authorization of this Agreement and the transactions
contemplated by this Agreement.
(i) SEC Reports. All SEC Filings shall have been submitted to
the SEC in accordance with the requirements of the Exchange Act (and the
rules, regulations and guidance promulgated thereunder), in form and
substance satisfactory to NYMA, and all applicable waiting periods shall
have been expired or waived by NYMA.
(j) Delivery of the Stock Certificates. The NYMA Shareholders
shall have received the stock certificates representing 29,174,510 shares
of MOJAVE SOUTHERN Common Stock at Closing.
(k) Closing Conditions. Documentation or other information shall
have been received in a form reasonably satisfactory to NYMA, which
evidences that the conditions set forth in this Section 7.2 have been
satisfied.
(l) Due Diligence. NYMA shall have completed its due diligence
examination of the MOJAVE SOUTHERN and shall have become satisfied with
the results thereof.
(m) Secretary's Certificate. MOJAVE SOUTHERN shall have
delivered to the NYMA a certificate of the Secretary of MOJAVE SOUTHERN,
in the form mutually agreed upon by the parties, certifying to the
resolutions of the Board of Directors of MOJAVE SOUTHERN authorizing the
transactions contemplated hereby and certifying that (i) such resolutions
have not been revoked, suspended or amended and remain in full force and
effect and (ii) this Agreement has been approved and adopted by all
requisite corporate action on the part of MOJAVE SOUTHERN.
(n) Indemnification Agreement. MOJAVE SOUTHERN shall have
entered into the indemnification agreement with all of its subsidiaries in
form and substance reasonably satisfactory to NYMA.
(o) Private Placement. NYMA shall have closed on the Private
Placement and shall have received no less two million five hundred
thousand ($2,500,000) dollars in proceeds from such Private Placement.
(p) Fairness Opinion. NYMA shall have received the opinion of an
investment banking firm that the transaction provided for in this
Agreement is fair to the Holders of the common stock of New York Medical,
Inc.
7.3 Additional Conditions to the Obligations of MOJAVE SOUTHERN. The
obligations of MOJAVE SOUTHERN to consummate and effect the Acquisition shall be
subject to the satisfaction at or prior to the Closing Date of each of the
following conditions, any of which may be waived, in writing, exclusively by
MOJAVE SOUTHERN:
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(a) Representations and Warranties. Each representation and
warranty of NYMA contained in this Agreement: (i) shall have been true and
correct as of the date of this Agreement, and (ii) shall be true and
correct on and as of the Closing Date with the same force and effect as if
made on and as of the Closing Date except (A) in each case, or in the
aggregate, as does not constitute a Material Adverse Effect on NYMA, (B)
for changes contemplated by this Agreement, and (C) for those
representations and warranties which address matters only as of a
particular date (which representations shall have been true and correct
except as does not constitute a Material Adverse Effect on NYMA as of such
particular date) (it being understood that, for purposes of determining
the accuracy of such representations and warranties, (i) all "Material
Adverse Effect" qualifications and other qualifications based on the word
"material" or similar phrases contained in such representations and
warranties shall be disregarded, and (ii) any update of or modification to
the NYMA Disclosure Schedule made or purported to have been made after the
date of this Agreement shall be disregarded). MOJAVE SOUTHERN shall have
received a certificate with respect to the foregoing signed on behalf of
NYMA by authorized officers of NYMA.
(b) Agreements and Covenants. NYMA shall have performed or
complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by them at or
prior to the Closing Date, and MOJAVE SOUTHERN shall have received
certificates to such effect signed on behalf of NYMA by an authorized
officer of NYMA.
(c) Material Adverse Effect. No Material Adverse Effect with
respect to NYMA and its subsidiaries shall have occurred since the date of
this Agreement.
(d) SHAREHOLDERS' Signatures. NYMA SHAREHOLDERS owning at least
90% of NYMA's issued and outstanding common stock shall sign this
Agreement, and shall have presented stock powers and other documents as
needed to transfer their NYMA stock to MOJAVE SOUTHERN, with signature(s)
notarized or guaranteed.
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time prior to the
Closing Date, whether before or after the requisite approvals of the Boards of
Directors of NYMA or MOJAVE SOUTHERN:
(a) by mutual written consent duly authorized by the Boards of
Directors of MOJAVE SOUTHERN and NYMA;
(b) by either NYMA or MOJAVE SOUTHERN if the Acquisition shall
not have been consummated by August 30, 2002 for any reason;
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provided, however, that the right to terminate this Agreement under this
Section 8.1(b) shall not be available to any party whose action or failure
to act has been a principal cause of or resulted in the failure of the
Acquisition to occur on or before such date and such action or failure to
act constitutes a breach of this Agreement;
(c) by either NYMA or MOJAVE SOUTHERN if a Governmental Entity
shall have issued an order, decree or ruling or taken any other action, in
any case having the effect of permanently restraining, enjoining or
otherwise prohibiting the Acquisition, which order, decree, ruling or
other action is final and nonappealable;
(d) by either NYMA or MOJAVE SOUTHERN if the required approval
of NYMA's SHAREHOLDERS shall not have been obtained; provided, that the
right to terminate this Agreement under this Section 8.1(d) shall not be
available to NYMA where the failure to obtain such NYMA SHAREHOLDER
approval shall have been caused by the action or failure to act of NYMA
and such action or failure to act constitutes a breach by NYMA of this
Agreement;
(e) by NYMA, upon a breach of any representation, warranty,
covenant or agreement on the part of MOJAVE SOUTHERN set forth in this
Agreement, or if any representation or warranty of MOJAVE SOUTHERN shall
have become untrue, in either case such that the conditions set forth in
Section 7.2(a) or Section 7.2(b) would not be satisfied as of the time of
such breach or as of the time such representation or warranty shall have
become untrue, provided that if such inaccuracy in MOJAVE SOUTHERN'S
representations and warranties or breach by MOJAVE SOUTHERN is curable by
MOJAVE SOUTHERN through the exercise of its commercially reasonable
efforts, then NYMA may not terminate this Agreement under this Section
8.1(e) for thirty (30) days after delivery of written notice from NYMA to
MOJAVE SOUTHERN of such breach, provided MOJAVE SOUTHERN continues to
exercise commercially reasonable efforts to cure such breach (it being
understood that NYMA may not terminate this Agreement pursuant to this
paragraph (e) if it shall have materially breached this Agreement or if
such breach by MOJAVE SOUTHERN is cured during such thirty day period); or
(f) by MOJAVE SOUTHERN, upon a breach of any representation,
warranty, covenant or agreement on the part of NYMA set forth in this
Agreement, or if any representation or warranty of NYMA shall have become
untrue, in either case such that the conditions set forth in Section
7.3(a) or Section 7.3(b) would not be satisfied as of the time of such
breach or as of the time such representation or warranty shall have become
untrue, provided, that if such inaccuracy in NYMA's representations and
warranties or breach by NYMA is curable by NYMA through the exercise of
its commercially reasonable efforts, then MOJAVE SOUTHERN may not
terminate this Agreement under this Section 8.1(f) for thirty (30) days
after delivery of written notice from MOJAVE SOUTHERN to NYMA of such
breach, provided NYMA continue to exercise commercially reasonable efforts
to cure such breach (it being
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understood that MOJAVE SOUTHERN may not terminate this Agreement pursuant
to this paragraph (f) if it shall have materially breached this Agreement
or if such breach by NYMA is cured during such thirty day period).
8.2 Notice of Termination; Effect of Termination. Any termination of this
Agreement under Section 8.1 above will be effective immediately upon the
delivery of written notice of the terminating party to the other parties hereto.
In the event of the termination of this Agreement as provided in Section 8.1,
this Agreement shall be of no further force or effect and no party shall have
any further liability or obligation to the other parties hereto, except (i) as
set forth in this Section 8.2, Section 8.3, and Section 6.2(c), each of which
shall survive the termination of this Agreement, and (ii) nothing herein shall
relieve any party from liability for any willful breach of this Agreement. No
termination of this Agreement shall affect the obligations of the parties
contained in the Confidentiality Agreement, all of which obligations shall
survive termination of this Agreement in accordance with their terms.
8.3 Fees and Expenses. Except as set forth in this Section 8.3, all fees
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses whether
or not the Acquisition is consummated. As used herein, MOJAVE SOUTHERN expenses
shall refer to expenses that relate to periods after the date of this Agreement,
and any other costs not specifically stated in Section 8.3(b) herein.
(a) Expenses to be paid by NYMA. NYMA shall pay the following
expenses relating to the Acquisition: the legal fees of its securities
counsel, all audit costs concerning the pre-closing and post-closing audit
of NYMA (including the cost of producing any audited or unaudited
pro-forma financial statements and/or any audited or unaudited stub
financial statements for NYMA).
(b) Expenses to be paid by MOJAVE SOUTHERN. MOJAVE SOUTHERN
shall pay the costs related to initiating the following actions: the legal
fees of its securities counsel; the cost of an opinion letter by legal
counsel regarding present or past litigation; the cost of preparation of
board minutes and resolutions of MOJAVE SOUTHERN; cover letter to transfer
agent; various letters to NASD, and other regulatory agencies concerning
the required advance notices of the transaction; preparing and filing the
Form 8-K describing the Acquisition of NYMA; preparing and sending to
MOJAVE SOUTHERN'S stockholders and others notice of the acquisition of
NYMA.
8.4 Amendment. Subject to applicable law, this Agreement may be amended by
the parties hereto at any time by execution of an instrument in writing signed
on behalf of each of MOJAVE SOUTHERN and NYMA.
8.5 Extension; Waiver. At any time prior to the Closing Date any party
hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties
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hereto, (ii) waive any inaccuracies in the representations and warranties made
to such party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any of the agreements or conditions for the benefit
of such party contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party. Delay in exercising any right under
this Agreement shall not constitute a waiver of such right.
ARTICLE 9
INTENTIONALLY OMITTED
ARTICLE 10
GENERAL PROVISIONS
10.1 Survival of Representations and Warranties. The representations and
warranties of MOJAVE SOUTHERN and NYMA contained in this Agreement shall survive
for a period of two (2) years following the Closing Date.
10.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or sent via telecopy (receipt confirmed) to the parties at the
following addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as shall be specified by like notice):
(a) if to MOJAVE SOUTHERN, INC. to:
MOJAVE SOUTHERN, INC.
0000 X. Xxxxxx Xxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxx Xxxxx, President/CEO
Tel: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx
Xxxxxx & Associates
00000 Xxx Xxxxxxx
Xxxx X
Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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(b) if to NYMA, to:
NEW YORK MEDICAL ACQUISITION CORP, INC.
000 Xxxxxxx Xxxxxx 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, President
(c) if to NYMA SHAREHOLDERS, to:
c/o NEW YORK MEDICAL ACQUISITION CORP, INC.
000 Xxxxxxx Xxxxxx 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, President
10.3 Interpretation. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. When reference is made herein to
"the business of" an entity, such reference shall be deemed to include the
business of all direct and indirect subsidiaries of such entity. Reference to
the subsidiaries of an entity shall be deemed to include all direct and indirect
subsidiaries of such entity.
10.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
10.5 Entire Agreement; Third Party Beneficiaries. This Agreement and the
documents and instruments and other agreements among the parties hereto as
contemplated by or referred to herein, including the NYMA Disclosure Schedule
and the MOJAVE SOUTHERN Disclosure Schedule constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof, it being understood that the
Confidentiality Agreement shall continue in full force and effect until the
Closing and shall survive any termination of this Agreement. No third party is
entitled to rely on any of the representations, warranties and agreements of the
parties contained in this Agreement and the parties assume no liability to any
third party because of such reliance.
10.6 Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other Persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
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10.7 Other Remedies; Specific Performance. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.
10.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof;
provided that issues involving the corporate governance of any of the parties
hereto shall be governed by their respective jurisdictions of incorporation.
10.9 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
10.10 Assignment. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other parties. Subject to the preceding sentence, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
10.11 Waiver of Jury Trial. EACH OF MOJAVE SOUTHERN, NYMA SHAREHOLDERS AND
NYMA HEREIN IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF MOJAVE SOUTHERN
OR NYMA IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
10.12 Brokers and Finders. The parties have not employed any broker,
financial advisor or finder or incurred any liability for any broker, financial
advisory or finder's fee in connection with the Agreement.
10.13 FURTHER ASSURANCES. In addition to the actions, documents and
instruments specifically required to be taken or delivered hereby, prior to and
after the Closing and without further consideration, the parties shall execute,
acknowledge and deliver such other assignments, transfers, consents and other
documents and instruments and take such other actions as either Party, or its
counsel, may reasonably request in order to complete and perfect the
transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed individually and or by their duly authorized respective officers this
__ day of July 2002 but to be effective as of the date first written above.
NEW YORK MEDICAL ACQUISITION CORP, INC.
By:
----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
MOJAVE SOUTHERN, INC.
By:
----------------------------------
Name: Xxxxxx Xxxxx
Title:
The Stockholders of NYMA, by their
separate Acknowledgement and Assumption
Agreements of even date herewith in the
Form of Schedule A.
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Following and subject to the consummation of the reorganization of New
York Medical Acquisition Corp., Inc. ("NYMA"), pursuant to the terms of that
certain Plan and Agreement of Reorganization, dated as of July __, 2002, by and
among New York Medical, Inc. ("NYMI"), NYMA, and the shareholders of NYMI,
pursuant to which Xx. Xxxxxxxx Xxxxxx ("Xxxxxx") shall own a majority of the
shares of issued and outstanding common stock, par value $.0001 per share of
NYMA, and the subsequent appointment of Xxxxxx as an officer and director of
NYMA, Xxxxxx hereby agrees to abide by the terms and conditions of this
Agreement and shall use his best efforts to take, or cause to be taken, on
behalf of NYMA, all actions necessary, proper or advisable to consummate the
Acquisition and the other transactions contemplated by this Agreement.
IN WITNESS WHEREOF, I have set my hand, as of July __, 2002
----------------------------------
Xx. Xxxxxxxx Xxxxxx
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SCHEDULE A
[FORM]
ACKNOWLEDGMENT AND ASSUMPTION AGREEMENT
The undersigned Stockholders of NEW YORK MEDICAL ACQUISITION CORP., INC.
hereby by executing this Acknowledgment and Assumption Agreement hereby becomes
a signatory to and acknowledges, assumes and agrees to the terms, conditions,
and covenants set forth in the Acquisition Agreement by and among MOJAVE
SOUTHERN, INC., a Nevada corporation, New York Medical Acquisition Corp., Inc. a
Delaware corporation ("NYMAC") and the Stockholders of NYMAC, dated July ____,
2002, including the provisions of Sections 3 and 7 thereof.
STOCKHOLDER
----------------------------------
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