EXCHANGE AGREEMENT
Between
FINDERS KEEPERS, INC.
and
THE XXXXX PARTNERSHIP, INC.
Dated October ___, 2001
TABLE OF CONTENTS
ARTICLE I REPRESENTATIONS, COVENANTS, AND WARRANTIES OF THE XXXXX PARTNERSHIP,
INC.
1.01 Organization...............................1
1.02 Capitalization.............................1
1.03 Subsidiaries and Predecessor Corporations..1
1.04 Financial Statements.......................1
1.05 Information................................2
1.06 Options and Warrants.......................2
1.07 Absence of Certain Changes or Events.......2
1.08 Title and Related Matters..................3
1.09 Litigation and Proceedings.................3
1.10 Contracts..................................3
1.11 Material Contract Defaults.................4
1.12 No Conflict With Other Instruments.........4
1.13 Governmental Authorizations................4
1.14 Compliance With Laws and Regulations.......4
1.15 Approval of Agreement......................4
1.16 Material Transactions or Affiliations......4
1.17 Xxxxx Schedules............................5
1.18 Bank Accounts; Power of Attorney...........5
1.19 Valid Obligation...........................6
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OF FINDERS KEEPERS, INC.
2.01 Organization...............................6
2.02 Capitalization.............................6
2.03 Subsidiaries and Predecessor Corporations..6
2.04 Securities Filings; Financial Statements...6
2.05 Information................................7
2.06 Options and Warrants.......................7
2.07 Absence of Certain Changes or Events.......7
2.08 Title and Related Matters..................8
2.09 Litigation and Proceedings.................8
2.10 Contracts..................................8
2.11 Material Contract Defaults.................9
2.12 No Conflict With Other Instruments.........9
2.13 Governmental Authorizations................9
2.14 Compliance With Laws and Regulations.......9
2.15 Insurance..................................9
2.16 Approval of Agreement......................9
2.17 Continuity of Business Enterprises.........9
2.18 Material Transactions or Affiliations......9
2.19 Labor Relations............................9
2.20 Finders Schedules.........................10
2.21 Bank Accounts; Power of Attorney..........10
2.22 Valid Obligation..........................10
2.23 Liabilities...............................10
ARTICLE III PLAN OF EXCHANGE
3.01 The Exchange..............................11
3.02 Anti-Dilution.............................11
3.03 Closing...................................11
3.04 Closing Events............................11
3.05 Termination...............................11
ARTICLE IV SPECIAL COVENANTS
4.01 Access to Properties and Records..........13
4.02 Delivery of Books and Records.............13
4.03 Third Party Consents and Certificates.....13
4.04 Name Change...............................13
4.05 Finders Shareholder Meeting...............13
4.06 Consent of Xxxxx Shareholders.............13
4.07 Designation of Directors and Officers.....13
4.08 Exclusive Dealing Rights..................13
4.09 Actions Prior to Closing..................14
4.10 Sales Under Rule 144 or 145, If Applicable15
4.11 Indemnification...........................15
ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF FINDERS
5.01 Accuracy of Representations and
Performance of Covenants..................16
5.02 Officer's Certificates....................16
5.03 No Material Adverse Change................16
5.04 Good Standing.............................16
5.05 Approval by Xxxxx Shareholders............16
5.06 No Governmental Prohibitions..............16
5.07 Consents..................................16
5.08 Other Items...............................16
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXX AND THE XXXXX
SHAREHOLDERS
6.01 Accuracy of Representations and Performance
of Covenants..............................17
6.02 Officer's Certificate.....................17
6.03 No Material Adverse Change................17
6.04 Good Standing.............................17
6.05 No Governmental Prohibition...............17
6.06 Consents..................................17
6.07 Other Items...............................17
6.08 Lockup....................................17
ARTICLE VII MISCELLANEOUS
7.01 No Bankruptcy and No Criminal Convictions.18
7.02 Brokers...................................18
7.03 Governing Law.............................18
7.04 Notices...................................18
7.05 Attorney's Fees...........................19
7.06 Confidentiality...........................19
7.07 Public Announcements and Filings..........19
7.08 Schedules; Knowledge......................19
7.09 Third Party Beneficiaries.................19
7.10 Expenses..................................19
7.11 Entire Agreement..........................19
7.12 Survival; Termination.....................19
7.13 Counterparts..............................19
7.14 Amendment or Waiver.......................19
7.15 Best Efforts..............................20
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement") is
entered into as of this day of October, 2001 by and between FINDERS KEEPERS,
INC., a Nevada corporation (hereinafter referred to as "Finders")and THE XXXXX
PARTNERSHIP, INC., a Delaware corporation (hereinafter referred to as "Xxxxx"),
upon the following premises:
Premises
WHEREAS, Finders is a publicly held corporation organized under the laws of
the State of Nevada;
WHEREAS, Xxxxx is a privately held corporation organized under the laws of
the State of Delaware;
WHEREAS, management of the constituent corporations have determined that it
is in the best interest of the parties that Finders acquire 100% of the issued
and outstanding securities of Xxxxx in exchange for the issuance of certain
shares of Finders (the "Exchange") and Xxxxx agreed to use its best efforts to
cause its shareholders (the "Xxxxx Shareholders") to exchange their securities
of Xxxxx on the terms described herein; and
WHEREAS, Finders and Xxxxx desire to set forth the terms of the Exchange,
which is intended to constitute a tax-free reorganization pursuant to the
provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF XXXXX
As an inducement to, and to obtain the reliance of Finders, except as set
forth on the Xxxxx Schedules (as hereinafter defined), Xxxxx represents and
warrants as follows:
Section 1.01 Organization. Xxxxx is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and has
the corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, except where failure to be so qualified
would not have a material adverse effect on its business. Included in the Xxxxx
Schedules are complete and correct copies of the articles of incorporation, and
bylaws of Xxxxx as in effect on the date hereof. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby will not, violate any provision of Xxxxx'x articles of incorporation or
bylaws. Xxxxx has taken all actions required by law, its articles of
incorporation, or otherwise to authorize the execution and delivery of this
Agreement. Xxxxx has full power, authority, and legal right and has taken all
action required by law, its articles of incorporation, and otherwise to
consummate the transactions herein contemplated.
Section 1.02 Capitalization. The authorized capitalization of Xxxxx
consists of 50,000,000 shares of common stock, $.01 par value, of which
30,744,000 shares are currently issued and outstanding and 10,000,000 shares of
preferred stock, $.01 par value, of which no shares are currently issued and
outstanding. All issued and outstanding shares are legally issued, fully paid,
and non-assessable and not issued in violation of the preemptive or other rights
of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. Xxxxx does not have
any predecessor corporation(s) or subsidiaries, and does not own, beneficially
or of record, any shares of any other corporation, except as disclosed in
Schedule 1.03. For purposes hereinafter, the term "Xxxxx" also includes those
subsidiaries, if any, set forth on Schedule 1.03.
Section 1.04 Financial Statements.
(a) Included in the Xxxxx Schedules is the compilation of the Xxxxx
balance sheet as of May 31, 2001, and the related statements of
operations and cash flows for the period from inception March 23, 2001
through May 31, 2001.
(b) Xxxxx has no liabilities with respect to the payment of any
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(c) Xxxxx has filed all state, federal or local income and/or franchise
tax returns required to be filed by it from inception to the date
hereof. Each of such income tax returns reflects the taxes due for the
period covered thereby, except for amounts which, in the aggregate, are
immaterial.
(d) The books and records, financial and otherwise, of Xxxxx are in all
material respects complete and correct and have been maintained in
accordance with good business and accounting practices.
(e) All of Xxxxx'x assets are reflected on its financial statements,
and, except as set forth in the Xxxxx Schedules or the financial
statements of Xxxxx or the notes thereto, Xxxxx has no material
liabilities, direct or indirect, matured or unmatured, contingent or
otherwise.
Section 1.05 Information. The information concerning Xxxxx set forth in
this Agreement and in the Xxxxx Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading. In addition,
Xxxxx has fully disclosed in writing to Finders (through this Agreement or the
Xxxxx Schedules) all information relating to matters involving Xxxxx or its
assets or its present or past operations or activities which (i) indicated or
may indicate, in the aggregate, the existence of a greater than $25,000
liability or diminution in value, (ii) have led or may lead to a competitive
disadvantage on the part of Xxxxx or (iii) either alone or in aggregation with
other information covered by this Section, otherwise have led or may lead to a
material adverse effect on the transactions contemplated herein or on Xxxxx, its
assets, or its operations or activities as presently conducted or as
contemplated to be conducted after the Closing Date, including, but not limited
to, information relating to governmental, employee, environmental, litigation
and securities matters and transactions with affiliates.
Section 1.06 Options or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued Xxxxx common stock, except options, warrants, calls or commitments, if
any, to which Xxxxx is not a party and by which it is not bound.
Section 1.07 Absence of Certain Changes or Events. Except as set
forth in this Agreement or the Xxxxx Schedules, since June 30, 2001:
(a) there has not been (i) any material adverse change in the business,
operations, properties, assets, or condition of Xxxxx or (ii) any
damage, destruction, or loss to Xxxxx (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of Xxxxx;
(b) Xxxxx has not (i) amended its articles of incorporation or bylaws;
(ii) declared or made, or agreed to declare or make, any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem,
any of its capital stock; (iii) waived any rights of value which in the
aggregate are outside of the ordinary course of business or material
considering the business of Xxxxx; (iv) made any material change in its
method of management, operation or accounting; (v) entered into any
other material transaction other than sales in the ordinary course of
its business; (vi) made any accrual or arrangement for payment of
bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee; (vii)
increased the rate of compensation payable or to become payable by it
to any of its officers or directors or any of its salaried employees
whose monthly compensation exceeds $1,000; or (viii) made any increase
in any profit sharing, bonus, deferred compensation, insurance,
pension, retirement, or other employee benefit plan, payment, or
arrangement made to, for, or with its officers, directors, or
employees;
(c) Xxxxx has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability
(absolute or contingent) except as disclosed herein and except
liabilities incurred in the ordinary course of business; (ii) paid or
agreed to pay any material obligations or liability (absolute or
contingent) other than current liabilities reflected in or shown on the
most recent Xxxxx balance sheet, and current liabilities incurred since
that date in the ordinary course of business and professional and other
fees and expenses in connection with the preparation of this Agreement
and the consummation of the transactions contemplated hereby; (iii)
sold or transferred, or agreed to sell or transfer, any of its assets,
properties, or rights (except assets, properties, or rights not used or
useful in its business which, in the aggregate have a value of less
than $1,000), or canceled, or agreed to cancel, any debts or claims
(except debts or claims which in the aggregate are of a value of less
than $1,000); (iv) made or permitted any amendment or termination of
any contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
Xxxxx; or (v) issued, delivered, or agreed to issue or deliver any
stock, bonds or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock); and
(d) to the best knowledge of Xxxxx, Xxxxx has not become subject to any
law or regulation which materially and adversely affects, or in the
future may adversely affect the business, operations, properties,
assets, or condition of Xxxxx.
Section 1.08 Title and Related Matters. Xxxxx has good and marketable
title to all of its properties, inventory, interests in properties, and assets,
real and personal, which are reflected in the most recent Xxxxx balance sheet or
acquired after that date (except properties, inventory, interests in properties,
and assets sold or otherwise disposed of since such date in the ordinary course
of business) free and clear of all liens, pledges, charges, or encumbrances
except (a) statutory liens or claims not yet delinquent; (b) such imperfections
of title and easements as do not and will not materially detract from or
interfere with the present or proposed use of the properties subject thereto or
affected thereby or otherwise materially impair present business operations on
such properties; and (c) as described in the Xxxxx Schedules. Except as set
forth in the Xxxxx Schedules, Xxxxx owns, free and clear of any liens, claims,
encumbrances, royalty interests, or other restrictions or limitations of any
nature whatsoever, any and all products it is currently manufacturing, including
the underlying technology and data, and all procedures, techniques, marketing
plans, business plans, methods of management, or other information utilized in
connection with Xxxxx' business. Except as set forth in the Xxxxx Schedules, no
third party has any right to, and Xxxxx has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, propriety techniques,
trademarks, service marks, trade names, or copyrights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a materially adverse effect on the business, operations, financial
condition, income, or business prospects of Xxxxx or any material portion of its
properties, assets, or rights.
Section 1.09 Litigation and Proceedings. Except as set forth in the
Xxxxx Schedules, there are no actions, suits, proceedings, or investigations
pending or, to the knowledge of Xxxxx after reasonable investigation, threatened
by or against Xxxxx or affecting Xxxxx or its properties, at law or in equity,
before any court or other governmental agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind. Xxxxx does not have any knowledge
of any material default on its part with respect to any judgment, order,
injunction, decree, award, rule, or regulation of any court, arbitrator, or
governmental agency or instrumentality or of any circumstances which, after
reasonable investigation, would result in the discovery of such a default.
Section 1.10 Contracts.
---------
(a) Except as included or described in the Xxxxx Schedules, there are
no "material" contracts, agreements, franchises, license agreements,
debt instruments or other commitments to which Xxxxx is a party or by
which it or any of its assets, products, technology, or properties are
bound other than those incurred in the ordinary course of business (as
used in this Agreement, a "material" contract, agreement, franchise,
license agreement, debt instrument or commitment is one which (i) will
remain in effect for more than six (6) months after the date of this
Agreement or (ii) involves aggregate obligations of at least fifty
thousand dollars ($50,000));
(b) All contracts, agreements, franchises, license agreements, and
other commitments to which Xxxxx is a party or by which its properties
are bound and which are material to the operations of Xxxxx taken as a
whole are valid and enforceable by Xxxxx in all respects, except as
limited by bankruptcy and insolvency laws and by other laws affecting
the rights of creditors generally;
(c) Xxxxx is not a party to or bound by, and the properties of Xxxxx
are not subject to any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any
judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of Xxxxx; and
(d) Except as included or described in the Xxxxx Schedules or reflected
in the most recent Xxxxx balance sheet, Xxxxx is not a party to any
oral or written (i) contract for the employment of any officer or
employee which is not terminable on 30 days, or less notice; (ii)
profit sharing, bonus, deferred compensation, stock option, severance
pay, pension benefit or retirement plan, (iii) agreement, contract, or
indenture relating to the borrowing of money, (iv) guaranty of any
obligation, other than one on which Xxxxx is a primary obligor, for the
borrowing of money or otherwise, excluding endorsements made for
collection and other guaranties of obligations which, in the aggregate
do not exceed more than one year or providing for payments in excess of
$25,000 in the aggregate; (vi) collective bargaining agreement; or
(vii) agreement with any present or former officer or director of
Xxxxx.
Section 1.11 Material Contract Defaults. Xxxxx is not in default in any
material respect under the terms of any outstanding contract, agreement, lease,
or other commitment which is material to the business, operations, properties,
assets or condition of Xxxxx and there is no event of default in any material
respect under any such contract, agreement, lease, or other commitment in
respect of which Xxxxx has not taken adequate steps to prevent such a default
from occurring.
Section 1.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which Xxxxx is a party or to which any of its
properties or operations are subject.
Section 1.13 Governmental Authorizations. Except as set forth in the
Xxxxx Schedules, Xxxxx has all licenses, franchises, permits, and other
governmental authorizations that are legally required to enable it to conduct
its business in all material respects as conducted on the date hereof. Except
for compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent, or order of, or
registration, declaration, or filing with, any court or other governmental body
is required in connection with the execution and delivery by Xxxxx of this
Agreement and the consummation by Xxxxx of the transactions contemplated hereby.
Section 1.14 Compliance With Laws and Regulations. Except as set forth
in the Xxxxx Schedules, to the best of its knowledge Xxxxx has complied with all
applicable statutes and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets, or
condition of Xxxxx or except to the extent that noncompliance would not result
in the occurrence of any material liability for Xxxxx.
Section 1.15 Approval of Agreement. The board of directors of Xxxxx has
authorized the execution and delivery of this Agreement by Xxxxx and has
approved this Agreement and the transactions contemplated hereby, and will
recommend to the Xxxxx Shareholders that the Exchange be accepted by them.
Section 1.16 Material Transactions or Affiliations. Set forth in the
Xxxxx Schedules is a description of every contract, agreement, or arrangement
between Xxxxx and any predecessor and any person who was at the time of such
contract, agreement, or arrangement an officer, director, or person owning of
record, or known by Xxxxx to own beneficially, 5% or more of the issued and
outstanding common stock of Xxxxx and which is to be performed in whole or in
part after the date hereof or which was entered into not more than three years
prior to the date hereof. Except as disclosed in the Xxxxx Schedules or
otherwise disclosed herein, no officer, director, or 5% shareholder of Xxxxx
has, or has had since inception of Xxxxx, any known interest, direct or
indirect, in any transaction with Xxxxx which was material to the business of
Xxxxx. There are no commitments by Xxxxx, whether written or oral, to lend any
funds, or to borrow any money from, or enter into any other transaction with,
any such affiliated person.
Section 1.17 Xxxxx Schedules. Xxxxx has delivered to Finders the
following schedules, which are collectively referred to as the "Xxxxx Schedules"
and which consist of separate schedules dated as of the date of execution of
this Agreement, all certified by the chief executive officer of Xxxxx as
complete, true, and correct as of the date of this Agreement in all material
respects:
(a) a schedule containing complete and correct copies of the articles of
incorporation, and bylaws of Xxxxx in effect as of the date of this
Agreement;
(b) a schedule containing the financial statements of Xxxxx identified in
paragraph 1.04(a);
(c) a Schedule 1.17(c) containing a list indicating the name and address of
each shareholder of Xxxxx together with the number of shares owned by him,
her or it;
(d) a schedule containing a description of all real property owned by Xxxxx,
together with a description of every mortgage, deed of trust, pledge, lien,
agreement, encumbrance, claim, or equity interest of any nature whatsoever
in such real property;
(e) copies of all licenses, permits, and other governmental authorizations (or
requests or applications therefor) pursuant to which Xxxxx carries on or
proposes to carry on its business (except those which, in the aggregate,
are immaterial to the present or proposed business of Xxxxx);
(f) a schedule listing the accounts receivable and notes and other obligations
receivable of Xxxxx as of June 30, 2001, or thereafter other than in the
ordinary course of business of Xxxxx, indicating the debtor and amount, and
classifying the accounts to show in reasonable detail the length of time,
if any, overdue, and stating the nature and amount of any refunds, set
offs, reimbursements, discounts, or other adjustments, which are in the
aggregate material and due to or claimed by such debtor;
(g) a schedule listing the accounts payable and notes and other obligations
payable of Xxxxx as of June 30, 2001, or that arose thereafter other than
in the ordinary course of the business of Xxxxx, indicating the creditor
and amount, classifying the accounts to show in reasonable detail the
length of time, if any, overdue, and stating the nature and amount of any
refunds, set offs, reimbursements, discounts, or other adjustments, which
in the aggregate are material and due to or claimed by Xxxxx respecting
such obligations;
(h) a schedule setting forth a description of any material adverse change in
the business, operations, property, inventory, assets, or condition of
Xxxxx since June 30, 2001, required to be provided pursuant to section 1.07
hereof; and
(i) a schedule setting forth any other information, together with any required
copies of documents, required to be disclosed in the Xxxxx Schedules by
Sections 1.01 through 1.16.
Xxxxx shall cause the Xxxxx Schedules and the instruments and data
delivered to Finders hereunder to be promptly updated after the date hereof up
to and including the Closing Date.
It is understood and agreed that not all of the schedules referred to
above have been completed or are available to be furnished by Xxxxx. Xxxxx shall
have until October 31, 2001 to provide such schedules. If Xxxxx cannot or fails
to do so, or if Finders acting reasonably finds any such schedules or updates
provided after the date hereof to be unacceptable according to the criteria set
forth below, Finders may terminate this Agreement by giving written notice to
Xxxxx within five (5) days after the schedules or updates were due to be
produced or were provided. For purposes of the foregoing, Finders may consider a
disclosure in the Xxxxx Schedules to be "unacceptable" only if that item would
have a material adverse impact on the financial statements listed in Section
1.04(a), taken as a whole.
Section 1.18 Bank Accounts; Power of Attorney. Set forth in Schedule
1.18 is a true and complete list of (a) all accounts with banks, money market
mutual funds or securities or other financial institutions maintained by Xxxxx
within the past twelve (12) months, the account numbers thereof, and all persons
authorized to sign or act on behalf of Xxxxx, (b) all safe deposit boxes and
other similar custodial arrangements maintained by Xxxxx within the past twelve
(12) months, and (c) the names of all persons holding powers of attorney from
Xxxxx or who are otherwise authorized to act on behalf of Xxxxx with respect to
any matter, other than its officers and directors, and a summary of the terms of
such powers or authorizations.
Section 1.19 Valid Obligation. This Agreement and all agreements and
other documents executed by Xxxxx in connection herewith constitute the valid
and binding obligation of Xxxxx, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF FINDERS
As an inducement to, and to obtain the reliance of Xxxxx and the Xxxxx
Shareholders, except as set forth in the Finders Schedules (as hereinafter
defined), Finders represents and warrants as follows:
Section 2.01 Organization. Finders is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Nevada and
has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets, to carry on its
business in all material respects as it is now being conducted, and except where
failure to be so qualified would not have a material adverse effect on its
business, there is no jurisdiction in which it is not qualified in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification. Included in the Finders Schedules are
complete and correct copies of the certificate of incorporation and bylaws of
Finders as in effect on the date hereof. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, violate any provision of Finders' certificate of incorporation or
bylaws. Finders has taken all action required by law, its certificate of
incorporation, its bylaws, or otherwise to authorize the execution and delivery
of this Agreement, and Finders has full power, authority, and legal right and
has taken all action required by law, its certificate of incorporation, bylaws,
or otherwise to consummate the transactions herein contemplated.
Section 2.02 Capitalization. Finders's authorized capitalization
consists of 200,000,000 shares of common stock, par value $.001 of which
3,314,206 shares will be issued and outstanding at the Closing as defined in
Section 3.03 (the "Original Finders Shares") and 25,000,000 shares of preferred
stock, $.001 par value of which 10,000 Series A Redeemable preferred stock are
issued and outstanding. All issued and outstanding shares are legally issued,
fully paid, and non-assessable and not issued in violation of the preemptive or
other rights of any person.
Section 2.03 Subsidiaries and Predecessor Corporations. Finders does
not have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 2.03. For purposes hereinafter, the term "Finders" also
includes those subsidiaries, if any, set forth on Schedule 2.03.
Section 2.04 Securities Filings; Financial Statements.
(a) For at least the past twelve months Finders has timely filed all
forms, reports and documents required to be filed with the Securities
and Exchange Commission, and has heretofore delivered to Xxxxx, in the
form filed with the Commission, (i) all quarterly and annual reports on
Forms 10-QSB and 10-KSB filed since June 30, 1999, (ii) all other
reports filed by Finders with the Securities and Exchange Commission
since June 30, 1999 (collectively, the "SEC Reports") and (iii) all
comment letters from the Securities and Exchange Commission with
respect to the SEC Reports. The SEC Reports (i) were prepared in
accordance with the requirements of the Securities Exchange Act of 1934
or the Securities Act of 1933, as appropriate, and (ii) did not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) Included in the Finders Schedules are (i) the unaudited balance
sheets of Finders and the related statements of operations and cash
flows as of and for the six months ended June 30, 2001 and (ii) the
audited balance sheets of Finders as of December 31, 1999 and 2000, and
the related audited statements of operations, stockholders' equity and
cash flows for the two fiscal years ended December 31, 1999 and
December 31, 2000, together with the notes to such statements and the
opinion of Xxxxx, Tinter & Associates, LLC, independent certified
public accountants, with respect thereto, all as set forth in the SEC
Reports.
(c) All such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved. The Finders balance sheets present
fairly as of their respective dates the financial condition of Finders.
As of the date of such balance sheets, except as and to the extent
reflected or reserved against therein, Finders had no liabilities or
obligations (absolute or contingent) which should be reflected in the
balance sheets or the notes thereto prepared in accordance with
generally accepted accounting principles, and all assets reflected
therein are properly reported and present fairly the value of the
assets of Finders, in accordance with generally accepted accounting
principles. The statements of operations, stockholders' equity and cash
flows reflect fairly the information required to be set forth therein
by generally accepted accounting principles.
(d) Finders has no liabilities with respect to the payment of any
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(e) Finders has timely filed all state, federal or local income and/or
franchise tax returns required to be filed by it from inception to the
date hereof. Each of such income tax returns reflects the taxes due for
the period covered thereby, except for amounts which, in the aggregate,
are immaterial.
(f) The books and records, financial and otherwise, of Finders are in
all material aspects complete and correct and have been maintained in
accordance with good business and accounting practices.
(g) All of Finders' assets are reflected on its financial statements,
and, except as set forth in the Finders Schedules or the financial
statements of Finders or the notes thereto, Finders has no material
liabilities, direct or indirect, matured or unmatured, contingent or
otherwise.
Section 2.05 Information. The information concerning Finders set forth
in this Agreement and the Finders Schedules is complete and accurate in all
material respects and does not contain any untrue statements of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading. In addition,
Finders has fully disclosed in writing to Xxxxx (through this Agreement or the
Finders Schedules) all information relating to matters involving Finders or its
assets or its present or past operations or activities which (i) indicated or
may indicate, in the aggregate, the existence of a greater than $25,000
liability or diminution in value, (ii) have led or may lead to a competitive
disadvantage on the part of Finders or (iii) either alone or in aggregation with
other information covered by this Section, otherwise have led or may lead to a
material adverse effect on the transactions contemplated herein or on Finders,
its assets, or its operations or activities as presently conducted or as
contemplated to be conducted after the Closing Date, including, but not limited
to, information relating to governmental, employee, environmental, litigation
and securities matters and transactions with affiliates.
Section 2.06 Options or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued stock of Finders.
Section 2.07 Absence of Certain Changes or Events. Except as disclosed
in Exhibit 2.07, or permitted in writing by Xxxxx, since the date of the most
recent Finders balance sheet:
(a) there has not been (i) any material adverse change in the business,
operations, properties, assets or condition of Finders or (ii) any
damage, destruction or loss to Finders (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets or condition of Finders;
(b) Finders has not (i) amended its certificate of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make any payment
of dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem,
any of its capital stock; (iii) waived any rights of value which in the
aggregate are outside of the ordinary course of business or material
considering the business of Finders; (iv) made any material change in
its method of management, operation, or accounting; (v) entered into
any transactions or agreements other than in the ordinary course of
business; (vi) made any accrual or arrangement for or payment of
bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee; (vii)
increased the rate of compensation payable or to become payable by it
to any of its officers or directors or any of its salaried employees
whose monthly compensation exceed $1,000; or (viii) made any increase
in any profit sharing, bonus, deferred compensation, insurance,
pension, retirement, or other employee benefit plan, payment, or
arrangement, made to, for or with its officers, directors, or
employees;
(c) Finders has not (i) granted or agreed to grant any options,
warrants, or other rights for its stock, bonds, or other corporate
securities calling for the issuance thereof; (ii) borrowed or agreed to
borrow any funds or incurred, or become subject to, any material
obligation or liability (absolute or contingent) except liabilities
incurred in the ordinary course of business; (iii) paid or agreed to
pay any material obligations or liabilities (absolute or contingent)
other than current liabilities reflected in or shown on the most recent
Finders balance sheet and current liabilities incurred since that date
in the ordinary course of business and professional and other fees and
expenses in connection with the preparation of this Agreement and the
consummation of the transaction contemplated hereby; (iv) sold or
transferred, or agreed to sell or transfer, any of its assets,
properties, or rights (except assets, properties, or rights not used or
useful in its business which, in the aggregate have a value of less
than $1000), or canceled, or agreed to cancel, any debts or claims
(except debts or claims which in the aggregate are of a value less than
$1000); (v) made or permitted any amendment or termination of any
contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
Finders; or (vi) issued, delivered or agreed to issue or deliver, any
stock, bonds, or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock), except in
connection with this Agreement; and
(d) to the best knowledge of Finders, it has not become subject to any
law or regulation which materially and adversely affects, or in the
future, may adversely affect, the business, operations, properties,
assets or condition of Finders.
Section 2.08 Title and Related Matters. Finders has good and marketable
title to all of its properties, inventory, interest in properties, and assets,
real and personal, which are reflected in the most recent Finders balance sheet
or acquired after that date (except properties, inventory, interest in
properties, and assets sold or otherwise disposed of since such date in the
ordinary course of business), free and clear of all liens, pledges, charges, or
encumbrances except (a) statutory liens or claims not yet delinquent; (b) such
imperfections of title and easements as do not and will not materially detract
from or interfere with the present or proposed use of the properties subject
thereto or affected thereby or otherwise materially impair present business
operations on such properties; and (c) as described in the Finders Schedules.
Except as set forth in the Finders Schedules, Finders owns, free and clear of
any liens, claims, encumbrances, royalty interests, or other restrictions or
limitations of any nature whatsoever, any and all products it is currently
manufacturing, including the underlying technology and data, and all procedures,
techniques, marketing plans, business plans, methods of management, or other
information utilized in connection with Finders's business. Except as set forth
in the Finders Schedules, no third party has any right to, and Finders has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
propriety techniques, trademarks, service marks, trade names, or copyrights
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse effect on the
business, operations, financial condition, income, or business prospects of
Finders or any material portion of its properties, assets, or rights.
Section 2.09 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or, to the knowledge Finders after
reasonable investigation, threatened by or against Finders or affecting Finders
or its properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of any
kind except as disclosed in Schedule 2.09. Finders has no knowledge of any
default on its part with respect to any judgement, order, writ, injunction,
decree, award, rule or regulation of any court, arbitrator, or governmental
agency or instrumentality or any circumstance which after reasonable
investigation would result in the discovery of such default.
Section 2.10 Contracts.
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(a) Finders is not a party to, and its assets, products, technology and
properties are not bound by, any material contract, franchise, license
agreement, agreement, debt instrument or other commitments whether such
agreement is in writing or oral, except as disclosed in Schedule 2.10.
(b) All contracts, agreements, franchises, license agreements, and
other commitments to which Finders is a party or by which its
properties are bound and which are material to the operations of
Finders taken as a whole are valid and enforceable by Finders in all
respects, except as limited by bankruptcy and insolvency laws and by
other laws affecting the rights of creditors generally;
(c) Finders is not a party to or bound by, and the properties of
Finders are not subject to any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any
judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of Finders; and
(d) Except as included or described in the Finders Schedules or
reflected in the most recent Finders balance sheet, Finders is not a
party to any oral or written (i) contract for the employment of any
officer or employee which is not terminable on 30 days, or less notice;
(ii) profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan, (iii) agreement,
contract, or indenture relating to the borrowing of money, (iv)
guaranty of any obligation, other than one on which Finders is a
primary obligor, for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of obligations
which, in the aggregate do not exceed more than one year or providing
for payments in excess of $25,000 in the aggregate; (vi) collective
bargaining agreement; or (vii) agreement with any present or former
officer or director of Finders.
Section 2.11 Material Contract Defaults. Finders is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Finders and there is no event of default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which Finders has not taken adequate steps to prevent
such a default from occurring.
Section 2.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Finders is a party or to which any of its assets or operations are subject.
Section 2.13 Governmental Authorizations. Finders has all licenses,
franchises, permits, and other governmental authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Finders of this Agreement and the consummation by Finders of the
transactions contemplated hereby.
Section 2.14 Compliance With Laws and Regulations. To the best of its
knowledge, Finders has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of Finders or
except to the extent that noncompliance would not result in the occurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities.
Section 2.15 Insurance. All of the properties of Finders are
fully insured for their full replacement cost.
Section 2.16 Approval of Agreement. The board of directors of Finders
has authorized the execution and delivery of this Agreement by Finders and has
approved this Agreement and the transactions contemplated hereby and will
recommend to its shareholders that they approve this Agreement and the
transactions contemplated hereby.
Section 2.17 Continuity of Business Enterprises. Finders has no
commitment or present intention to liquidate Xxxxx or sell or otherwise dispose
of a material portion of Xxxxx'x business or assets following the consummation
of the transactions contemplated hereby.
Section 2.18 Material Transactions or Affiliations. Except as disclosed
herein and in the Finders Schedules, there exists no contract, agreement or
arrangement between Finders and any predecessor and any person who was at the
time of such contract, agreement or arrangement an officer, director, or person
owning of record or known by Finders to own beneficially, 5% or more of the
issued and outstanding common stock of Finders and which is to be performed in
whole or in part after the date hereof or was entered into not more than three
years prior to the date hereof. Neither any officer, director, nor 5%
shareholder of Finders has, or has had since inception of Finders, any known
interest, direct or indirect, in any such transaction with Finders which was
material to the business of Finders. Finders has no commitment, whether written
or oral, to lend any funds to, borrow any money from, or enter into any other
transaction with, any such affiliated person.
Section 2.19 Labor Relations. Finders has not had work stoppage
resulting from labor problems. To the knowledge of Finders, no union or other
collective bargaining organization is organizing or attempting to organize any
employee of Finders.
Section 2.20 Finders Schedules. Finders has delivered to Xxxxx the
following schedules, which are collectively referred to as the "Finders
Schedules" and which consist of separate schedules, which are dated the date of
this Agreement, all certified by the chief executive officer of Finders to be
complete, true, and accurate in all material respects as of the date of this
Agreement:
(a) a schedule containing complete and accurate copies of the certificate
of incorporation and bylaws of Finders as in effect as of the date of
this Agreement;
(b) a schedule containing the financial statements of Finders identified
in paragraph 2.04(b);
(c) a Schedule 2.20(c) containing a list indicating the name and address
of each shareholder of Finders together with the number of shares
owned by him, her or it;
(d) a schedule containing a description of all real property owned by
Finders, together with a description of every mortgage, deed of trust,
pledge, lien, agreement, encumbrance, claim, or equity interest of any
nature whatsoever in such real property;
(e) copies of all licenses, permits, and other governmental authorizations
(or requests or applications therefor) pursuant to which Finders
carries on or proposes to carry on its business (except those which,
in the aggregate, are immaterial to the present or proposed business
of Finders);
(f) a schedule listing the accounts receivable and notes and other
obligations receivable of Finders as of June 30, 2001, or thereafter
other than in the ordinary course of business of Finders, indicating
the debtor and amount, and classifying the accounts to show in
reasonable detail the length of time, if any, overdue, and stating the
nature and amount of any refunds, set offs, reimbursements, discounts,
or other adjustments which are in the aggregate material and due to or
claimed by such debtor;
(g) a schedule listing the accounts payable and notes and other
obligations payable of Finders as of June 30, 2001, or that arose
thereafter other than in the ordinary course of the business of
Finders, indicating the creditor and amount, classifying the accounts
to show in reasonable detail the length of time, if any, overdue, and
stating the nature and amount of any refunds, set offs,
reimbursements, discounts, or other adjustments, which in the
aggregate are material and due to or claimed by Finders respecting
such obligations;
(h) a schedule setting forth a description of any material adverse change
in the business, operations, property, inventory, assets, or condition
of Finders since June 30, 2001 required to be provided pursuant to
section 2.07 hereof; and
(i) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Finders
Schedules by Sections 2.01 through 2.19.
Finders shall cause the Finders Schedules and the instruments and data
delivered to Xxxxx hereunder to be promptly updated after the date hereof up to
and including the Closing Date.
It is understood and agreed that not all of the schedules referred to
above have been completed or are available to be furnished by Finders. Finders
shall have until October 31, 2001 to provide such schedules. If Finders cannot
or fails to do so, or if Xxxxx acting reasonably finds any such schedules or
updates provided after the date hereof to be unacceptable according to the
criteria set forth below, Xxxxx may terminate this Agreement by giving written
notice to Finders within five (5) days after the schedules or updates were due
to be produced or were provided. For purposes of the foregoing, Xxxxx may
consider a disclosure in the Finders Schedules to be "unacceptable" only if that
item would have a material adverse impact on the financial statements listed in
Section 2.04(b), taken as a whole.
Section 2.21 Bank Accounts; Power of Attorney. Set forth in Schedule
2.21 is a true and complete list of (a) all accounts with banks, money market
mutual funds or securities or other financial institutions maintained by Finders
within the past twelve (12) months, the account numbers thereof, and all persons
authorized to sign or act on behalf of Finders, (b) all safe deposit boxes and
other similar custodial arrangements maintained by Finders within the past
twelve (12) months, and (c) the names of all persons holding powers of attorney
from Finders or who are otherwise authorized to act on behalf of Finders with
respect to any matter, other than its officers and directors, and a summary of
the terms of such powers or authorizations.
Section 2.22 Valid Obligation. This Agreement and all agreements and
other documents executed by Finders in connection herewith constitute the valid
and binding obligation of Finders, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
Section 2.23 Liabilities. Finders acknowledges that it will have no
liabilities outstanding as of Closing at that term is defined in Section 3.03.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01 The Exchange. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 3.03),
each Xxxxx Shareholder who shall elect to accept the exchange offer described
herein (the "Accepting Shareholders"), shall assign, transfer and deliver, free
and clear of all liens, pledges, encumbrances, charges, restrictions or known
claims of any kind, nature, or description, the number of shares of common stock
of Xxxxx set forth on Schedule 1.17(c) attached hereto, in the aggregate
constituting 100% of the issued and outstanding shares of common stock of Xxxxx
held by each of such shareholders; the objective of such Exchange being the
acquisition by Finders of 100% of the issued and outstanding common stock of
Xxxxx. In exchange for the transfer of such securities by the Xxxxx
Shareholders, Finders shall issue to the Xxxxx Shareholders (1) an aggregate of
30,744,000 of common stock of Finders (the "Initial Shares"). At the Closing,
each Xxxxx Shareholder shall, on surrender of his certificate or certificates
representing such Xxxxx shares to Finders or its registrar or transfer agent, be
entitled to receive a certificate or certificates evidencing his proportionate
interest in the Initial Shares. Upon consummation of the transaction
contemplated herein, assuming participation by all of the Xxxxx Shareholders,
all of the shares of capital stock of Xxxxx shall be held by Finders.
Section 3.02 Anti-Dilution. The number of shares of Finders common
stock issuable upon exchange pursuant to Section 3.01 shall be appropriately
adjusted to take into account any other stock split, stock dividend, reverse
stock split, recapitalization, or similar change in the Finders common stock
which may occur (i) between the date of the execution of this Agreement and the
Closing Date, as to the Initial Shares, and (ii) between the date of the
execution of this Agreement and the release date, as to the Additional Shares.
Section 3.03 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than October 8, 2001, subject
to the right of Finders or Xxxxx to extend such Closing Date by up to an
additional sixty (60) days. Such Closing shall take place at a mutually
agreeable time and place.
Section 3.04 Closing Events. At the Closing, Finders, Xxxxx and each of
the Accepting Shareholders shall execute, acknowledge, and deliver (or shall
ensure to be executed, acknowledged, and delivered) any and all certificates,
opinions, financial statements, schedules, agreements, resolutions, rulings or
other instruments required by this Agreement to be so delivered at or prior to
the Closing, together with such other items as may be reasonably requested by
the parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby. Among other things, Finders shall
provide an opinion of counsel acceptable to Xxxxx as to such matters as Xxxxx
may reasonably request, which shall include, but not be limited to, a statement,
to the effect that to such counsel's best knowledge, after reasonable
investigation, from inception until the Closing Date, Finders has complied with
all applicable statutes and regulations of any federal, state, or other
applicable governmental entity or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets or condition of Finders or except to the extent
that noncompliance would not result in the occurrence of any material liability
(such compliance including, but not being limited to, the filing of all reports
to date with federal and state securities authorities).
Section 3.05 Termination.
(a) This Agreement may be terminated by the board of directors of either
Finders or Xxxxx at any time prior to the Closing Date if:
(i) there shall be any actual or threatened action or
proceeding before any court or any governmental body which
shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in the
judgement of such board of directors, made in good faith and
based upon the advice of its legal counsel, makes it
inadvisable to proceed with the Exchange; or
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval is
required to consummate such transactions (which does not
include the Securities and Exchange Commission) or in the
judgement of such board of directors, made in good faith and
based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will
be obtained only on a condition or conditions which would be
unduly burdensome, making it inadvisable to proceed with the
Exchange.
In the event of termination pursuant to this paragraph (a) of Section
3.05, no obligation, right or liability shall arise hereunder, and each
party shall bear all of the expenses incurred by it in connection with
the negotiation, drafting, and execution of this Agreement and the
transactions herein contemplated.
(b) This Agreement may be terminated by the board of directors of Finders
at any time prior to the Closing Date if:
(i) there shall have been any change after the date of the
latest balance sheet of Xxxxx in the assets, properties,
business, or financial condition of Xxxxx, which could have a
materially adverse effect on the financial statements of Xxxxx
listed in Section 1.04(a) taken as a whole, except any changes
disclosed in the Xxxxx Schedules;
(ii) the board of directors of Finders determines in good
faith that one or more of Finders' conditions to Closing has
not occurred, through no fault of Finders.
(iii) Finders takes the termination action specified in
Section 1.18 as a result of Xxxxx Schedules or updates thereto
which Finders finds unacceptable;
(iv) on or before September 20, 2001, Finders notifies Xxxxx
that Finders' investigation pursuant to Section 4.01 below has
uncovered information which it finds unacceptable by the same
criteria set forth in Section 1.17; or
(v) Xxxxx shall fail to comply in any material respect with
any of its covenants or agreements contained in this Agreement
or if any of the representations or warranties of Xxxxx
contained herein shall be inaccurate in any material respect,
where such noncompliance or inaccuracy has not been cured
within ten (10) days after written notice thereof.
If this Agreement is terminated pursuant to this paragraph (b) of
Section 3.05, this Agreement shall be of no further force or effect,
and no obligation, right or liability shall arise hereunder, except
that both parties shall bear their own costs in connection with the
negotiation, preparation, and execution of this Agreement and
qualifying the offer and sale of securities to be issued in the
Exchange under the registration requirements, or exemption from the
registration requirements, of state and federal securities laws.
(c) This Agreement may be terminated by the board of directors of Xxxxx at
any time prior to the Closing Date if:
(i) there shall have been any change after the date of the latest
balance sheet of Finders in the assets, properties, business or
financial condition of Finders, which could have a material
adverse effect on the financial statements of Finders listed in
Section 2.04(b) taken as a whole, except any changes disclosed in
the Finders Schedules;
(ii) the board of directors of Xxxxx determines in good faith
that one or more of Xxxxx'x conditions to Closing has not
occurred, through no fault of Xxxxx;
(iii) Xxxxx takes the termination action specified in Section
2.20 as a result of Finders Schedules or updates thereto which
Xxxxx finds unacceptable;
(iv) on or before September 30, 2001 Xxxxx notifies Finders that
Xxxxx'x investigation pursuant to Section 4.01 below has
uncovered information which it finds unacceptable by the same
criteria set forth in Section 2.20; or
(v) Finders shall fail to comply in any material respect with any
of its covenants or agreements contained in this Agreement or if
any of the representations or warranties of Finders contained
herein shall be inaccurate in any material respect, where such
noncompliance or inaccuracy has not been cured within ten (10)
days after written notice thereof.
If this Agreement is terminated pursuant to this paragraph (c) of
Section 3.05, this Agreement shall be of no further force or effect,
and no obligation, right or liability shall arise hereunder, except
that Finders shall bear its own costs as well as the reasonable costs
of Xxxxx and its principal shareholders incurred in connection with the
negotiation, preparation and execution of this Agreement.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. Finders and Xxxxx will
each afford to the officers and authorized representatives of the other full
access to the properties, books and records of Finders or Xxxxx, as the case may
be, in order that each may have a full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of the other, and each
will furnish the other with such additional financial and operating data and
other information as to the business and properties of Finders or Xxxxx, as the
case may be, as the other shall from time to time reasonably request. Without
limiting the foregoing, as soon as practicable after the end of each fiscal
quarter (and in any event through the last fiscal quarter prior to the Closing
Date), each party shall provide the other with quarterly internally prepared and
unaudited financial statements.
Section 4.02 Delivery of Books and Records. At the Closing, Xxxxx shall
deliver to Finders the originals of the corporate minute books, books of
account, contracts, records, and all other books or documents of Xxxxx now in
the possession of Xxxxx or its representatives.
Section 4.03 Third Party Consents and Certificates. Finders and Xxxxx
agree to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein contemplated.
Section 4.04 Name Change. At or prior to the Closing Date, Finders'
Board of Directors shall have approved an amendment to the certificate of
incorporation to change the name of Finders to "The Xxxxx Partnership, Inc."
Such amendment shall be carried out promptly upon approval of the same by the
shareholders of Finders.
Section 4.05 Finders Shareholder Meeting. Finders shall call a special
shareholders meeting to be held on or prior to the Closing Date at which meeting
the shareholders of Finders shall be requested to approve, and Finders' Board of
Directors shall recommend approval of, the terms of this Agreement, including
the name change described in Section 4.04 and such other matters as shall
require shareholder approval hereunder.
Section 4.06 Consent of Xxxxx Shareholders. Xxxxx shall use its best
efforts to obtain the consent of all Xxxxx Shareholders to participate in the
Exchange.
Section 4.07 Designation of Directors and Officers. On or before the
Closing Date, Finders shall increase its board of directors to seven (7)
persons. X. Xxxxxx Xxxxxxx shall be designated as Chairman of the Board of
Finders and Xxx Xxxxx, Xxxxxxx Xxxxx xx Xxxxxxxx, Xxxxxx Xxxxx, Xx. Xxxxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxx and Xxxxx Xxxxx shall be designated as additional board
members.
Section 4.08 Exclusive Dealing Rights. Until 5:00 P.M. Eastern Daylight
Time on October 8, 2001.
(a) In recognition of the substantial time and effort which Finders has
spent and will continue to spend in investigating Xxxxx and its
business and in addressing the matters related to the transactions
contemplated herein, each of which may preempt or delay other
management activities, neither Xxxxx, nor any of its officers,
employees, representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except
where required by fiduciary obligations under applicable law as advised
by counsel, participate in any negotiations with or provide any
information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than Finders and
its directors, officers, employees, representatives and agents)
concerning any merger, sale of substantial assets, sale of shares of
capital stock, (including without limitation, any public or private
offering of the common stock of Xxxxx) or similar transactions
involving Xxxxx (all such transactions being referred to as "Xxxxx
Acquisition Transactions"). If Xxxxx receives any proposal with respect
to a Xxxxx Acquisition Transaction, it will immediately communicate to
Finders the fact that it has received such proposal and the principal
terms thereof.
(b) In recognition of the substantial time and effort which Xxxxx has
spent and will continue to spend in investigating Finders and its
business and in addressing the matters related to the transactions
contemplated herein, each of which may preempt or delay other
management activities, neither Finders, nor any of its officers,
employees, representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except
where required by fiduciary obligations under applicable law as advised
by counsel, participate in any negotiations with or provide any
information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than Xxxxx and its
directors, officers, employees, representatives and agents) concerning
any merger, sale of substantial assets, sale of shares of capital
stock, (including without limitation, any public or private offering of
the common stock of Finders or similar transactions involving Finders
(all such transactions being referred to as "Finders Acquisition
Transactions"). If Finders receives any proposal with respect to a
Finders Acquisition Transaction, it will immediately communicate to
Xxxxx the fact that it has received such proposal and the principal
terms thereof.
Section 4.09 Actions Prior to Closing.
(a) From and after the date of this Agreement until the Closing Date
and except as set forth in the Finders Schedules or Xxxxx Schedules or
as permitted or contemplated by this Agreement, Finders (subject to
paragraph (d) below) and Xxxxx respectively, will each:
(i) carry on its business in substantially the same manner as it has
heretofore;
(ii) maintain and keep its properties in states of good repair and
condition as at present, except for depreciation due to ordinary
wear and tear and damage due to casualty;
(iii)maintain in full force and effect insurance comparable in amount
and in scope of coverage to that now maintained by it;
(iv) perform in all material respects all of its obligations under
material contracts, leases, and instruments relating to or
affecting its assets, properties, and business;
(v) use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain
its relationship with its material suppliers and customers; and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state
laws and all rules, regulations, and orders imposed by federal or
state governmental authorities.
(b) From and after the date of this Agreement until the Closing Date,
neither Finders nor Xxxxx will:
(i) make any changes in their articles or certificate of
incorporation or bylaws;
(ii) take any action described in Section 1.07 in the case of
Xxxxx, or in Section 2.07, in the case of Finders (all
except as permitted therein or as disclosed in the
applicable party's schedules);
(iii)enter into or amend any contract, agreement, or other
instrument of any of the types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary
course of business involving the sale of goods or services;
or
(iv) sell any assets or discontinue any operations (other than
the Divestiture), sell any shares of capital stock (other
than as contemplated in Sections 4.07 and 4.08 hereof and
the sale of securities underlying existing warrants or
options of Finders) or conduct any similar transactions
other than in the ordinary course of business.
(C) In light of the fact that Xxxxx'x shareholders will control Finders
as a result of the Exchange, from and after the date of this Agreement
until the Closing Date, Finders shall take no action which is material
to its business without the prior written approval of Xxxxx, which
Xxxxx may give or withhold in its sole discretion after consultation
with Finders.
Section 4.10 Sales Under Rule 144 or 145,If Applicable.
(a) Finders will use its best efforts to at all times comply with the
reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including timely filing of all periodic
reports required under the provisions of the Exchange Act and the rules
and regulations promulgated thereunder.
(b) Upon being informed in writing by any such person holding
restricted stock of Finders that such person intends to sell any shares
under Rule 144, Rule 145 or Regulation S promulgated under the
Securities Act (including any rule adopted in substitution or
replacement thereof), Finders will certify in writing to such person
that it has filed all of the reports required to be filed by it under
the Exchange Act to enable such person to sell such person's restricted
stock under Rule 144, 145 or Regulation S, as may be applicable in the
circumstances, or will inform such person in writing that it has not
filed any such report or reports.
(c) If any certificate representing any such restricted stock is
presented to Finders' transfer agent for registration of transfer in
connection with any sale theretofore made under Rule 144, 145 or
Regulation S, provided such certificate is duly endorsed for transfer
by the appropriate person(s) or accompanied by a separate stock power
duly executed by the appropriate person(s) in each case with reasonable
assurances that such endorsements are genuine and effective, and is
accompanied by an opinion of counsel satisfactory to Finders and its
counsel that the stock transfer has complied with the requirements of
Rule 144, 145 or Regulation S, as the case may be, Finders will
promptly instruct its transfer agent to register such shares and to
issue one or more new certificates representing such shares to the
transferee and, if appropriate under the provisions of Rule 144, 145 or
Regulation S, as the case may be, free of any stop transfer order or
restrictive legend. The provisions of this Section 4.11 shall survive
the Closing and the consummation of the transactions contemplated by
this Agreement.
Section 4.11 Indemnification.
(a) Xxxxx hereby agrees to indemnify Finders and each of the officers,
agents and directors of Finders as of the date of execution of this
Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentations made under Article I of
this Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement.
(b) Finders hereby agrees to indemnify Xxxxx and each of the officers,
agents, and directors of Xxxxx and each of the Xxxxx Shareholders as of
the date of execution of this Agreement against any loss, liability,
claim, damage, or expense (including, but not limited to, any and all
expense whatsoever reasonably incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever), to which it or they may become subject arising out of or
based on any inaccuracy appearing in or misrepresentation made under
Article II of this Agreement. The indemnification provided for in this
paragraph shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this Agreement.
Section 4.12 Limitation of Subsequent Corporate Actions.
It is expressly understood and agreed that Finders, the
shareholders of Xxxxx, and their affiliates, will take all steps necessary to
ensure that for a period of twelve months following this Agreement:
(a) there shall be no reverse split of the Finders' common stock;
(b) and that the assets of Xxxxx shall remain in Finders as part of its
business operations;
(c) that Xxxxx will not issue shares for any consideration less than $1
per share, except as part of Xxxxx'x current private placement .
Section 4.13 Indemnification of Subsequent Corporate Actions.
(a) No officer, director, controlling shareholder, agent or representative
of Finders, or any other person currently affiliated with Finders, has
offered or agreed to assist in the promotion, market making,
development, enhancement, or support of Finders' business, capital
raising, or securities market.
(b) Xxxxx hereby represents and warrants that it will indemnify and hold
harmless any officer, director, controlling shareholder, agent or
representative of Finders, or any other person affiliated with
Finders, from any decisions, activities, or conduct of Finders
contemporaneous with, or subsequent to this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF FINDERS
The obligations of Finders under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Xxxxx in this Agreement were true
when made and shall be true at the Closing Date with the same force and effect
as if such representations and warranties were made at and as of the Closing
Date (except for changes therein permitted by this Agreement). Xxxxx shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Xxxxx prior to or at the Closing.
Finders shall be furnished with a certificate, signed by a duly authorized
executive officer of Xxxxx and dated the Closing Date, to the foregoing effect.
Section 5.02 Officer's Certificate. Finders shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
officer of Xxxxx to the effect that no litigation, proceeding, investigation, or
inquiry is pending, or to the best knowledge of Xxxxx threatened, which might
result in an action to enjoin or prevent the consummation of the transactions
contemplated by this Agreement, or, to the extent not disclosed in the Xxxxx
Schedules, by or against Xxxxx, which might result in any material adverse
change in any of the assets, properties, business, or operations of Xxxxx.
Section 5.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business,
or operations of Xxxxx nor shall any event have occurred which, with the lapse
of time or the giving of notice, is determined to be unacceptable using the
criteria set forth in Section 1.17.
Section 5.04 Good Standing. Finders shall have received a certificate
of good standing from the State of Delaware, dated as of a date within thirty
days prior to the Closing Date certifying that Xxxxx is in good standing as a
corporation in the State of Delaware.
Section 5.05 Approval by Xxxxx Shareholders. The Exchange shall have
been approved, and shares delivered in accordance with Section 3.01, by the
holders of not less than ninety percent (90%) of the outstanding common stock of
Xxxxx, unless a lesser number is agreed to by Finders.
Section 5.06 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.07 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Finders and Xxxxx after the Closing Date on the basis as presently
operated shall have been obtained.
Section 5.08 Other Items.
------------
(a) Finders shall have received a list of Xxxxx'x shareholders
containing the name, address, and number of shares held by each Xxxxx
shareholder as of the date of Closing, certified by an executive
officer of Xxxxx as being true, complete and accurate; and
(b) Finders shall have received such further opinions, documents,
certificates or instruments relating to the transactions contemplated
hereby as Finders may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXX
AND THE XXXXX SHAREHOLDERS
The obligations of Xxxxx and the Xxxxx Shareholders under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Finders in this Agreement were true
when made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date.
Additionally, Finders shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by
Finders and shall have satisfied the conditions described below prior to or at
the Closing:
(a) Immediately prior to the Closing, Finders shall have no more than an
aggregate of 3,314,206 shares of common stock issued and outstanding or
issuable pursuant to outstanding warrants and options and 10,000 shares of
Series A Redeemable preferred stock, excluding any shares and warrants
issuable pursuant to the Exchange or the Placement.
(b) The shareholders of Finders shall have approved the Exchange and the
related transactions described herein.
Xxxxx shall have been furnished with certificates, signed by duly authorized
executive officers of Finders and dated the Closing Date, to the foregoing
effect.
Section 6.02 Officer's Certificate. Xxxxx shall have been furnished
with certificates dated the Closing Date and signed by duly authorized executive
officers of Finders, to the effect that no litigation, proceeding, investigation
or inquiry is pending, or to the best knowledge of Finders threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement or, to the extent not disclosed in
the Finders Schedules, by or against Finders, which might result in any material
adverse change in any of the assets, properties or operations of Finders.
Section 6.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business or
operations of Finders nor shall any event have occurred which, with the lapse of
time or the giving of notice, is determined to be unacceptable using the
criteria set forth in Section 2.20.
Section 6.04 Good Standing. Xxxxx shall have received a certificate of
good standing from the Secretary of State of the State of Nevada or other
appropriate office, dated as of a date within thirty days prior to the Closing
Date certifying that Finders is in good standing as a corporation in the State
of Nevada and has filed all tax returns required to have been filed by it to
date and has paid all taxes reported as due thereon.
Section 6.05 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.06 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Finders and Xxxxx after the Closing Date on the basis as presently
operated shall have been obtained.
Section 6.07 Other Items. Xxxxx shall have received further opinions,
documents, certificates, or instruments relating to the transactions
contemplated hereby as Xxxxx may reasonably request.
Section 6.08 Lockup. Stockholders of Finders owning approximately
1,500,000 freely tradeable shares at the Closing shall agree for $10.00 and
other good and valuable consideration that for a period of 135 days (the "Lockup
Period") after the date of September 22, 2001, the Finder stockholders will not
without the prior written consent of Xxxxx, directly or indirectly, offer for
sale, sell, assign, pledge, issue, distribute, grant any option or enter into
any contract for sale of or otherwise dispose of (any such action being
hereafter referred to as a "Transfer") more than 250,000 of the aggregate shares
of Finders or an aggregate of 208,333, in any one of the following three (3),
one (1) month periods that hereinafter comprise the Lockup Period.
ARTICLE VII
MISCELLANEOUS
Section 7.01 No Bankruptcy and No Criminal Convictions.
None of the Parties to the Agreement, nor their officers, directors or
affiliates, promoter or control person, nor any predecessor, thereof have been
subject to the following:
(a) Any bankruptcy petition filed by or against any business of which such
person was a general partner or executive officer either at the time of the
bankruptcy or within two (2) years prior to that time;
(b) Any conviction in a criminal proceeding or being subject to a pending
criminal proceeding (excluding traffic violations and other minor
offenses);
(c) Being subject to any order, judgment, or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently
or temporarily enjoining, barring, suspending or otherwise limiting his
involvement in any type of business, securities or banking activities; and
(d) Being found by a court of competent jurisdiction (in a civil action), the
Securities and Exchange Commission (the "SEC") or the Commodity Futures
Trading Commission to have violated a federal or state securities or
commodities law, and the judgment has not been reversed, suspended, or
vacated.
Section 7.02 Brokers. Finders and Xxxxx agree that, except as set out
on Schedule 7.01 attached hereto, there were no finders or brokers involved in
bringing the parties together or who were instrumental in the negotiation,
execution or consummation of this Agreement. Finders and Xxxxx each agree to
indemnify the other against any claim by any third person other than those
described above for any commission, brokerage, or finder's fee arising from the
transactions contemplated hereby based on any alleged agreement or understanding
between the indemnifying party and such third person, whether express or implied
from the actions of the indemnifying party.
Section 7.03 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to the matters of state law, with the laws
of the State of Nevada without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees that any
legal or equitable action or proceedings arising under or in connection with
this Agreement shall be brought exclusively in the federal courts of the United
States, (b) by execution and delivery of this Agreement, irrevocably submits to
and accepts, with respect to any such action or proceeding, generally and
unconditionally, the jurisdiction of the aforesaid court, and irrevocably waives
any and all rights such party may now or hereafter have to object to such
jurisdiction.
Section 7.04 Notices. Any notice or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to Finders, to: FINDERS KEEPERS, INC.
0000 X. Xxxxx Xxxx Xxxxxx, Xxx. 000
Xxxxxxx, XX 00000
If to Xxxxx, to:. THE XXXXX PARTNERSHIP, INC.
c/o The Xxxxx Partnership, Inc.
29th Flr., One Canadian Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
With copies to: Vanderkam & Xxxxxxx
Attn: Xxxxx Xxxx
000 Xxxxxxxxx, #000
Xxxxxxx, Xxxxx 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.05 Attorney's Fees. In the event that either party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the prevailing party shall be reimbursed by
the losing party for all costs, including reasonable attorney's fees, incurred
in connection therewith and in enforcing or collecting any judgement rendered
therein.
Section 7.06 Confidentiality. Each party hereto agrees with the other
that, unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
Section 7.07 Public Announcements and Filings. Unless required by
applicable law or regulatory authority, none of the parties will issue any
report, statement or press release to the general public, to the trade, to the
general trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by the parties. Copies of any such
filings, public announcements or disclosures, including any announcements or
disclosures mandated by law or regulatory authorities, shall be delivered to
each party at least one (1) business day prior to the release thereof.
Section 7.08 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.09 Third Party Beneficiaries. This contract is strictly
between Finders and Xxxxx, and, except as specifically provided, no director,
officer, stockholder (other than the Xxxxx Shareholders), employee, agent,
independent contractor or any other person or entity shall be deemed to be a
third party beneficiary of this Agreement.
Section 7.10 Expenses. Subject to Sections 3.05 and 7.04 above, whether
or not the Exchange is consummated, each of Finders and Xxxxx will bear their
own respective expenses, including legal, accounting and professional fees,
incurred in connection with the Exchange or any of the other transactions
contemplated hereby.
Section 7.11 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 7.12 Survival; Termination. The representations, warranties,
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of two years.
Section 7.13 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.14 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.15 Best Efforts. Subject to the terms and conditions herein
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
Section 7.16 Faxed Copies. For purposes of this Agreement, a faxed
signature will constitute an original signature.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first-above written.
ATTEST: FINDERS KEEPERS, INC.
BY: /s/ Xxxxxx Xxxxxxx
-------------------------------- ---------------------------------
Secretary or Assistant Secretary President
ATTEST: THE XXXXX PARTNERSHIP, INC.
BY: /s/ Xxxxxx X. Xxxxx
-------------------------------- ---------------------------------
Secretary or Assistant Secretary Xxxxxx X. Xxxxx, Chief Executive Officer
The undersigned shareholders of THE XXXXX PARTNERSHIP, INC. hereby
agree to participate in the Exchange on the terms set forth above. Subject to
Section 7.11 above, each of the undersigned hereby represents and affirms that
he has read each of the representations and warranties of THE XXXXX PARTNERSHIP,
INC. set out in Article I hereof and that, to the best of his knowledge, all of
such representations and warranties are true and correct.
______________, individually
______________, individually
______________, individually
