AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
MICRO-ASI INTERNATIONAL, INC.,
AND
XxXXXXX METALS, INC.
TABLE OF CONTENTS
1. Plan of Reorganization. . . . . . . . . . . . . . . . . . . . . . . . .1
2. Exchange of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . .1
3. Pre-Closing Events. . . . . . . . . . . . . . . . . . . . . . . . . . .2
4. Exchange of Securities. . . . . . . . . . . . . . . . . . . . . . . . .2
5. Post Acquisition Events . . . . . . . . . . . . . . . . . . . . . . . .3
6. Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
7. Delivery of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . .3
8. Representations of XxXxxxx Historical Shareholders. . . . . . . . . . .3
9. Representations of XxXxxxx. . . . . . . . . . . . . . . . . . . . . . .4
10. Representations of Micro and Xxxxxxxxx . . . . . . . . . . . . . . . .5
11. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
12. Conditions Precedent to the Obligations of XxXxxxx . . . . . . . . . .7
13. Conditions Precedent to the Obligations of Micro . . . . . . . . . . .9
14. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
15. Nature and Survival of Representations . . . . . . . . . . . . . . . 10
16. Documents at Closing . . . . . . . . . . . . . . . . . . . . . . . . 10
17. Finder's Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Signature Page. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Exhibit A - XxXxxxx Stockholder Schedule
Exhibit B - Amendment to Articles of Incorporation
Exhibit C - Investment Letter
(i)
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the "Agreement")
is entered into effective as of this 21st day of March, 1997, by and among
Micro-ASI International, Inc., a Nevada corporation (hereinafter "Micro");
Xxxx X. Xxxxxxxxx an officer, director and principal shareholder of Micro
(hereinafter "Xxxxxxxxx"); McHenry Metals, Inc., an Illinois corporation
(hereinafter "McHenry"), and the owners of all the outstanding shares of
common stock of McHenry (hereinafter the "McHenry Stockholders").
RECITALS:
WHEREAS, the XxXxxxx Stockholders own all of the issued and outstanding
common stock of McHenry which comprises 5,650,000 shares (the "XxXxxxx Common
Stock"). Micro desires to acquire the XxXxxxx Common Stock solely in exchange
for voting common stock of Micro, making XxXxxxx a wholly-owned subsidiary of
Micro; and
WHEREAS, the XxXxxxx Stockholders (as set forth on the attached Exhibit
"A") desire to acquire voting common stock of Micro in exchange for the
XxXxxxx Common Stock, as more full set forth herein.
NOW THEREFORE, for the mutual consideration set out herein, and other
good and valuable consideration, the receipt of and legal sufficiency of which
is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Plan of Reorganization. It is hereby agreed that all of the XxXxxxx
Common Stock shall be acquired by Micro in exchange solely for Micro common
voting stock (the "Micro Shares"). It is the intention of the parties hereto
that all of the issued and outstanding shares of capital stock of XxXxxxx
shall be acquired by Micro in exchange solely for Micro common voting stock
and that this entire transaction qualify as an organizational exchange under
Section 351 of the Internal Revenue Code of 1986, as amended, and related or
other applicable sections thereunder and/or a corporate reorganization under
Section 368(a)(1)(B).
2. Exchange of Shares. Micro and XxXxxxx Stockholders agree that on
the Closing Date or at the Closing as hereinafter defined, the XxXxxxx Common
Stock shall be delivered at Closing to Micro in exchange for the Micro shares,
after giving effect to a 2.2 for 1 forward stock split as to all presently
outstanding shares of Micro common stock, as follows:
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(a) The Micro Shares will, on the Closing Date or at the Closing, be
delivered to McHenry Stockholders in exchange for their XxXxxxx Common Stock
on a share-for-share basis.
(b) At Closing, Micro shall, subject to the conditions set forth
herein, issue an aggregate of 5,650,000 shares of Micro common stock to the
XxXxxxx Stockholders. The 5,650,000 shares and all future references herein
to the Micro Shares are stated after giving effect to a 2.2 for 1 forward
stock split of the currently outstanding shares of common stock of Micro (the
"Micro Forward Stock Split").
(c) Each XxXxxxx Stockholder shall execute this Agreement.
(d) Unless otherwise agreed by Micro and XxXxxxx this transaction shall
close only in the event Micro is able to acquire all of the outstanding
XxXxxxx Common Stock.
3. Pre-Closing Events. The Closing is subject to the completion of
the following:
(a) XxXxxxx shall have provided Micro with a copy of XxXxxxx audited
financial statements dated within thirty days of Closing, demonstrating a
tangible net worth of at least $500,000.
(b) Micro shall have authorized 50,000,000 shares of $.001 par value
common stock an 5,000,000 shares of $.001 par value preferred stock. The
preferred stock shall be subject to issuance in such series and with such
rights, preferences and designations as determined in the sole discretion of
the board of directors.
(c) Micro shall have effectuated the Micro Forward Stock Split at or
prior to Closing, and shall have 1,271,094 shares of its common stock issued
and outstanding and no other shares of capital stock issued or outstanding.
4. Exchange of Securities. As of the Closing Date each of the
following shall occur:
(a) Each share of XxXxxxx Common Stock issued and outstanding
immediately prior to the Closing Date shall be exchanged for one share of
Micro common stock. All such outstanding shares of XxXxxxx Common Stock shall
be deemed, after Closing, to be owned by Micro. The holders of such
certificates previously evidencing shares of XxXxxxx Common Stock outstanding
immediately prior to the Closing Date shall cease to have any rights with
respect to such shares of XxXxxxx Common Stock except as otherwise provided
herein or by law;
(b) Any shares of XxXxxxx Common Stock held in the treasury of XxXxxxx
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
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(c) The 1,271,094 shares of Micro common stock previously issued and
outstanding prior to the Closing will remain outstanding.
5. Post-Acquisition Events. Upon Closing, the following shall be
accomplished:
(a) Micro shall file an amendment to its articles of incorporation with
the Secretary of State of the State of Nevada in substantially the form
attached hereto as Exhibit "B" effecting the amendment to its articles of
incorporation to change its name to "XxXxxxx Metals Golf Corp." or such other
name as is selected by XxXxxxx and to accomplish the other matters agreed to
by the parties hereto and set forth in the attached Exhibit "B".
(b) XxXxxxx intends to cause Micro to declare a distribution of Series
A Warrants wherein the shareholders of Micro, owning the 1,271,094 shares of
Micro Common Stock outstanding at Closing, shall be entitled to receive one
Series A Warrant for each outstanding share of Micro common stock (1,271,094
warrants). The distribution and exercise of the Series A Warrants shall be
subject to registration with the Securities and Exchange Commission.
(c) The resignation of the existing Micro officers and directors and
appointment of new officers and directors as described in Section 14(f)
hereof.
6. Other Matters.
(a) Except for the recapitalization of Micro, including the Micro
Forward Stock Split, there shall be no stock dividend, stock split,
recapitalization, or exchange of shares with respect to or rights issued in
respect of, Micro's capital stock after the date hereof and there shall be no
dividends paid on Micro's capital stock after the date hereof, in each case
through and including the Closing Date.
(b) XxXxxxx shall have received all requisite director and shareholder
approval of all matters set forth herein, and no shareholder of XxXxxxx shall
have exercised any dissenters rights under applicable corporate law.
(c) Micro shall have received all requisite shareholder approval of the
matters set forth herein.
7. Delivery of Shares. On or as soon as practicable after the Closing
Date, XxXxxxx will use its best efforts to cause the XxXxxxx Stockholders to
surrender for cancellation certificates representing their shares of XxXxxxx
Common Stock, against delivery of certificates representing the Micro Shares
for which the shares of XxXxxxx Common Stock are to be exchanged at Closing.
8. Representations of McHenry Stockholders. XxXxxxx Stockholders
hereby represent and warrant each only as to its own XxXxxxx Common Stock,
effective this date and the Closing Date as follows:
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(a) Except as may be set forth in Exhibit "A", the XxXxxxx Common Stock
is free from claims, liens, or other encumbrances, and at the Closing Date
XxXxxxx Stockholders will have good title and the unqualified right to
transfer and dispose of such McHenry Common Stock.
(b) Each XxXxxxx Stockholder, respectively, is the sole owner of the
issued and outstanding XxXxxxx Common Stock as set forth in Exhibit "A";
(c) No XxXxxxx Stockholder has the present intent to sell or dispose of
the Micro Shares and no XxXxxxx Stockholder is under a binding obligation,
formal commitment, or existing plan to sell or otherwise dispose of the Micro
Shares.
9. Representations of McHenry. XxXxxxx hereby represents and warrants
as follows, which warranties and representations shall also be true as of the
Closing Date:
(a) Except as noted on Exhibit "A", the XxXxxxx Stockholders listed on
the attached Exhibit "A" are the sole owners of record and beneficially of the
issued and outstanding common stock of McHenry.
(b) XxXxxxx has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in Exhibit A,
attached hereto.
(c) The audited financial statements as of and for the period ended
March 31, 1997, which have been delivered to Micro (hereinafter referred to as
the "XxXxxxx Financial Statements") are complete and accurate and fairly
present the financial condition of XxXxxxx as of the date thereof and the
results of its operations for the period covered, subject to normal year-end
adjustments. There are no material liabilities or obligations, either fixed
or contingent, not disclosed in the XxXxxxx Financial Statements or in any
exhibit thereto or notes thereto other than contracts or obligations in the
ordinary course of business; and no such contracts or obligations in the
ordinary course of business constitute liens or other liabilities which
materially alter the financial condition of XxXxxxx as reflected in the
XxXxxxx Financial Statements. XxXxxxx has good title to all assets shown on
the XxXxxxx Financial Statements subject only to dispositions and other
transactions in the ordinary course of business, the disclosures set forth
therein and liens and encumbrances of record. The XxXxxxx Financial
Statements have been prepared in accordance with generally accepted accounting
principles consistently applied (except as may be indicated therein or in the
notes thereto).
(d) Since the date of the XxXxxxx Financial Statements, there have not
been any material adverse changes in the financial position of XxXxxxx except
changes arising in the ordinary course of business, which changes will in no
event materially and adversely affect the financial position of McHenry.
(e) XxXxxxx is not a party to any material pending litigation or, to
its best knowledge, any governmental investigation or proceeding, not
reflected in the XxXxxxx Financial Statements, and to its best knowledge, no
material litigation, claims, assessments or any governmental proceedings are
threatened against McHenry.
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(f) XxXxxxx is in good standing in its state of incorporation, and is
in good standing and duly qualified to do business in each state where
required to be so qualified except where the failure to so qualify would have
no material negative impact on McHenry.
(g) XxXxxxx has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof) due
or required to be filed and has (or will have) paid or made adequate
provisions for all taxes or assessments which have become due as of the
Closing Date.
(h) XxXxxxx has not materially breached any material agreement to which
it is a party. XxXxxxx has previously given Micro copies or access thereto of
all material contracts, commitments and/or agreements to which XxXxxxx is a
party including all relationships or dealings with related parties or
affiliates.
(i) McHenry has no subsidiary corporations.
(j) XxXxxxx has made its corporate financial records, minute books, and
other corporate documents and records available for review to present
management of Micro prior to the Closing Date, during reasonable business
hours and on reasonable notice.
(k) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which XxXxxxx is a party and has
been duly authorized by all appropriate and necessary corporate action and
XxXxxxx, to the extent required, has obtained all necessary approvals or
consents required by any agreement to which XxXxxxx is a party.
(l) All information regarding XxXxxxx which is set forth in its
Confidential Business Plan dated February 27, 1997, or otherwise delivered to
Micro by XxXxxxx for use in connection with the transaction described herein
is true, complete and accurate in all material respects.
10. Representations of Micro and Xxxxxxxxx. Micro and Xxxxxxxxx hereby
jointly and severally represent and warrant as follows, each of which
representations and warranties shall continue to be true as of the Closing
Date:
(a) As of the Closing Date, the Micro Shares, to be issued and
delivered to the XxXxxxx Stockholders hereunder will, when so issued and
delivered, constitute, duly authorized, validly and legally issued shares of
Micro common stock, fully-paid and nonassessable.
(b) Micro has the corporate power to enter into this Agreement and to
perform its respective obligations hereunder. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the board of directors of Micro. The execution
and performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to
which Micro is a party and will not violate any judgment, decree, order, writ,
rule, statute, or regulation applicable to Micro or its properties. The
execution and performance of this Agreement will not violate or conflict with
any provision of the articles of incorporation or by-laws of Micro.
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(c) Micro has delivered to XxXxxxx a true and complete copy of its
audited financial statements for the years ended September 30, 1996 and 1995,
(the "Micro Financial Statements"). The Micro Financial Statements are
complete, accurate and fairly present the financial condition of Micro as of
the dates thereof and the results of its operations for the periods then
ended. There are no material liabilities or obligations either fixed or
contingent not reflected therein except as provided in subparagraph (d) below.
The Micro financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except as may be
indicated therein or in the notes thereto) and fairly present the financial
position of Micro as of the dates thereof and the results of its operations
and changes in financial position for the periods then ended.
(d) Since September 30, 1996, there have not been any material adverse
changes in the financial condition of Micro except advances by Xxxxxxxxx to
pay reasonable and ordinary expenses in connection with maintaining its
corporate status and pursuing the matters contemplated in this Agreement. At
Closing such advances and all accounts payable and other liabilities reflected
on the Micro Financial Statements shall be paid and satisfied.
(e) Micro is not a party to or the subject of any pending litigation,
claims, or governmental investigation or proceeding not reflected in the Micro
Financial Statements or otherwise disclosed herein, and there are no lawsuits,
claims, assessments, investigations, or similar matters, to the best knowledge
of Xxxxxxxxx, threatened or contemplated against or affecting Micro, its
management or its properties.
(f) Micro is duly organized, validly existing and in good standing
under the laws of the State of Nevada; has the corporate power to own its
property and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except where
the failure to so qualify would have no material negative impact.
(g) Micro has filed all federal, state, county and local income,
excise, property and other tax, governmental and/or related returns, forms, or
reports, which are due or required to be filed by it prior to the date hereof,
except where the failure to do so would have no material adverse impact on
Micro, and has paid or made adequate provision in the Micro Financial
Statements for the payment of all taxes, fees, or assessments which have or
may become due pursuant to such returns or pursuant to any assessments
received. Micro is not delinquent or obligated for any tax, penalty,
interest, delinquency or charge.
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(h) There are no existing options, calls, warrants, preemptive rights
or commitments of any character relating to the issued or unissued capital
stock or other securities of Micro, except as contemplated in this agreement.
(i) The corporate financial records, minute books, and other documents
and records of Micro have been made available to XxXxxxx prior to the Closing.
(j) Micro has not breached, nor is there any pending, or to the
knowledge of management, any threatened claim that Micro has breached, any of
the terms or conditions of any agreements, contracts or commitments to which
it is a party or by which it or its properties is bound. The execution and
performance hereof will not violate any provisions of applicable law or any
agreement to which Micro is subject. Micro hereby represents that it is not a
party to any material contract or commitment other than appointment documents
with its transfer agent, and that it has disclosed to XxXxxxx all
relationships or dealings with related parties or affiliates.
(k) Micro common stock is eligible for quotation on the NASD Electronic
Bulletin Board and there are no stop orders in effect with respect thereto.
(l) All information regarding Micro which has been provided to XxXxxxx
in the Micro Corporate Information Statement dated January 2, 1997 or
otherwise disclosed to the public in connection with the transactions
contemplated herein, is true, complete and accurate in all material respects.
Micro and Xxxxxxxxx make no representations or warranties regarding
disclosures as to XxXxxxx or its proposed business.
11. Closing. The Closing of the transactions contemplated herein shall
take place on such date (the "Closing") as mutually determined by the parties
hereto when all conditions precedent have been met and all required documents
have been delivered, which Closing shall be no later than April 15, 1997,
unless extended by mutual consent of all parties hereto. The "Closing Date"
of the transactions described herein (the "Acquisition"), shall be that date
on which all conditions set forth herein have been met and the Micro Shares
are issued in exchange for the XxXxxxx Common Stock.
12. Conditions Precedent to the Obligations of McHenry. All
obligations of XxXxxxx under this Agreement are subject to the fulfillment,
prior to or as of the Closing and/or the Closing Date, as indicated below, of
each of the following conditions:
(a) The representations and warranties by or on behalf of Xxxxxxxxx and
Micro contained in this Agreement or in any certificate or document delivered
pursuant to the provisions hereof shall be true in all material respects at
and as of the Closing and Closing Date as though such representations and
warranties were made at and as of such time.
(b) Micro shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or complied with or
executed and delivered by it prior to or at the Closing.
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(c) On or before the Closing, the board of directors and shareholders
representing a majority interest, of Micro shall have approved in accordance
with applicable state corporation law the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein.
(d) On or before the Closing Date, Micro shall have delivered to
XxXxxxx certified copies of resolutions of the board of directors and
shareholders of Micro approving and authorizing the execution, delivery and
performance of this Agreement and authorizing all of the necessary and proper
action to enable Micro to comply with the terms of this Agreement including
the election of XxXxxxx'x nominees to the Board of Directors of Micro and all
matters outlined herein.
(e) The Acquisition shall be permitted by applicable state law and
Micro shall have sufficient shares of its capital stock authorized to complete
the Acquisition.
(f) At Closing, the existing officers and directors of Micro shall have
resigned in writing from all positions as directors and officers of Micro upon
the election and appointment of the XxXxxxx nominees.
(g) At the Closing, all instruments and documents delivered to XxXxxxx
and XxXxxxx Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for XxXxxxx.
(h) The shares of restricted Micro capital stock to be issued to
XxXxxxx Stockholders at Closing will be validly issued, nonassessable and
fully-paid under Nevada corporation law and will be issued in a nonpublic
offering and isolated transaction in compliance with all federal, state and
applicable securities laws.
(i) XxXxxxx shall have received the advice of its tax advisor, if
deemed necessary by XxXxxxx, that the exchange of shares is a tax free
reorganization as to the exchanging McHenry shareholders.
(j) XxXxxxx shall have received all necessary and required approvals
and consents from required parties and its shareholders.
(k) At the Closing, Micro shall have delivered to XxXxxxx an opinion of
its counsel dated as of the Closing to the effect that:
(i) Micro is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation;
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(ii) This Agreement has been duly authorized, executed and
delivered by Micro and is a valid and binding obligation of Micro
enforceable in accordance with its terms;
(iii) Micro each through its board of directors and stockholders
has taken all corporate action necessary for performance under this
Agreement;
(iv) The documents executed and delivered by Micro to XxXxxxx and
XxXxxxx Stockholders hereunder are valid and binding in accordance with
their terms and vest in XxXxxxx Stockholders, as the case may be, all
right, title and interest in and to the Micro Shares to be issued
pursuant to the terms hereof, and the Micro Shares when issued will be
duly and validly issued, fully-paid and nonassessable;
(v) Micro has the corporate power to execute, deliver and perform
under this Agreement;
(vi) Legal counsel for Micro is not aware of any liabilities,
claims or lawsuits involving Micro;
13. Conditions Precedent to the Obligations of Micro. All obligations
of Micro under this Agreement are subject to the fulfillment, prior to or at
the Closing, of each of the following conditions:
(a) The representations and warranties by XxXxxxx contained in this
Agreement or in any certificate or document delivered pursuant to the
provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time.
(b) XxXxxxx shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing;
(c) XxXxxxx shall deliver on behalf of the XxXxxxx Stockholders a
letter commonly known as an "Investment Letter," signed by each of said
shareholders, in substantially the form attached hereto as Exhibit "D",
acknowledging that the Micro Shares are being acquired for investment
purposes.
(d) XxXxxxx shall have delivered the XxXxxxx Financial Statements
demonstrating a net worth of at least $500,000.
(e) XxXxxxx shall deliver an opinion of its legal counsel to the effect
that:
(i) XxXxxxx is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation and is
duly qualified to do business in any jurisdiction where so required
except where the failure to so qualify would have no material adverse
impact on XxXxxxx;
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(ii) This Agreement has been duly authorized, executed and
delivered by XxXxxxx.
(iii) The documents executed and delivered by XxXxxxx and XxXxxxx
Stockholders to Micro hereunder are valid and binding in accordance with
their terms and vest in Micro all right, title and interest in and to
the XxXxxxx Common Stock, which stock is duly and validly issued, fully-
paid and nonassessable.
14. Indemnification. For a period of one year from the Closing, Micro
and Xxxxxxxxx agree to jointly and severally indemnify and hold harmless
XxXxxxx, and XxXxxxx agrees to indemnify and hold harmless Micro and
Xxxxxxxxx, at all times after the date of this Agreement against and in
respect of any liability, damage or deficiency, all actions, suits,
proceedings, demands, assessments, judgments, costs and expenses including
attorney's fees incident to any of the foregoing, resulting from any material
misrepresentations made by an indemnifying party to an indemnified party, an
indemnifying party's breach of covenant or warranty or an indemnifying party's
nonfulfillment of any agreement hereunder, or from any material
misrepresentation in or omission from any certificate furnished or to be
furnished hereunder.
15. Nature and Survival of Representations. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing and the consummation of the transactions contemplated hereby for one
year from the Closing. All of the parties hereto are executing and carrying
out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement and not upon any investigation upon which it might have made or any
representation, warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set
forth herein.
16. Documents at Closing. At the Closing, the following documents
shall be delivered:
(a) XxXxxxx will deliver, or will cause to be delivered, to Micro the
following:
(i) a certificate executed by the President and Secretary of
XxXxxxx to the effect that all representations and warranties made by
XxXxxxx under this Agreement are true and correct as of the Closing, the
same as though originally given to Micro on said date;
(ii) a certificate from the state of incorporation of XxXxxxx
dated at or about the Closing to the effect that XxXxxxx is in good
standing under the laws of said state;
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(iii) Investment Letters in the form attached hereto as Exhibit
"D" executed by each XxXxxxx Stockholder;
(iv) such other instruments, documents and certificates, if any,
as are required to be delivered pursuant to the provisions of this
Agreement;
(v) certified copies of resolutions adopted by the shareholders
and directors of XxXxxxx authorizing this transaction; and
(vi) all other items, the delivery of which is a condition
precedent to the obligations of Micro as set forth herein.
(vii) the legal opinion required by Section 15(d) hereof.
(b) Micro will deliver or cause to be delivered to XxXxxxx:
(i) stock certificates representing the Micro Shares to be issued
as a part of the stock exchange as described herein;
(ii) a certificate of the President of Micro, to the effect that
all representations and warranties of Micro made under this Agreement
are true and correct as of the Closing, the same as though originally
given to XxXxxxx on said date;
(iii) certified copies of resolutions adopted by Micro's board of
directors and Micro's Stockholders authorizing the Acquisition and all
related matters;
(iv) certificate from the jurisdiction of incorporation of Micro
dated at or about the Closing Date that Micro is in good standing under
the laws of said state;
(v) opinion of Micro's counsel as described in Section 14(k)
above;
(vi) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(vii) resignation of all of the existing officers and directors
of Micro; and
(viii) all other items, the delivery of which is a condition
precedent to the obligations of XxXxxxx, as set forth in Section 14
hereof.
17. Finder's Fees. Micro, represents and warrants to XxXxxxx, and
XxXxxxx represents and warrants to Micro that neither of them, or any party
acting on their behalf, has incurred any liabilities, either express or
implied, to any "broker" of "finder" or similar person in connection with this
Agreement or any of the transactions contemplated hereby. In this regard,
Micro, on the one hand, and XxXxxxx on the other hand, will indemnify and hold
the other harmless from any claim, loss, cost or expense whatsoever (including
reasonable fees and disbursements of counsel) from or relating to any such
express or implied liability.
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18. Miscellaneous.
(a) Further Assurances. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply with
any of its
obligations, agreements or conditions hereunder may be waived in writing by
the party to whom such compliance is owed.
(c) Termination. All obligations hereunder may be terminated at the
discretion of either party's board of directors if (i) the closing conditions
specified in Sections 14 and 15 are not met by April 15, 1997, unless
extended, or (ii) any of the representations and warranties made herein have
been materially breached.
(d) Amendment. This Agreement may be amended only in writing as agreed
to by all parties hereto.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or
sent by prepaid first class registered or certified mail, return receipt
requested.
(f) Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(h) Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed upon
or understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
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(k) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(l) Responsibility and Costs. All fees, expenses and out-of-pocket
costs and expenses, including, without limitation, fees and disbursements of
counsel, advisors and accountants, incurred by the parties hereto shall be
borne solely and entirely by the party that has incurred such costs and
expenses.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
MICRO-ASI INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxx, Secretary Xxxx X. Xxxxxxxxx, President
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, individually
XxXXXXX METALS, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxxxx, Secretary Xxxx X. Xxxxx, President
SHAREHOLDERS OF XxXXXXX METALS, INC.
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
/s/ Xxx Xxxx
Xxx Xxxx
/s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
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