ASSET PURCHASE AGREEMENT
by and among
HERITAGE SCHOLASTIC CORPORATION
a Nevada Corporation
and
NANO CHEMICAL SYSTEMS, INC.
a Nevada Corporation
ASSET PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS ASSET PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 27th day of January, 2005, by and among, Heritage Scholastic Corporation, a
Nevada corporation with its principal place of business located at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx Xxxxxxxxxx, 00000, ("Heritage"); Nano Chemical Systems, Inc., a
Nevada Corporation with its principal place of business at 0000 XX Xxxxxx,
Xxxxxxxx, Xx. 00000 ("Nano") and the shareholders of Nano ("Shareholders") as
set forth on Exhibit A attached hereto (collectively Nano and the shareholders
of Nano shall be known as the "Nano Group").
Premises
A. This Agreement provides for the acquisition of all of the assets of Nano
as set forth on Schedule A attached hereto ("Assets") by Heritage and the
issuance of a total of 9,000,000 restricted common shares of Heritage to the
Nano shareholders.
B. The majority shareholders and boards of directors of Nano and Heritage
have determined, subject to the terms and conditions set forth in this
Agreement, that the transaction contemplated hereby is desirable and in the best
interests of their stockholders, respectively. This Agreement is being entered
into for the purpose of setting forth the terms and conditions of the proposed
acquisition.
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
HERITAGE SCHOLASTIC CORPORATION
As an inducement to and to obtain the reliance of Nano, Heritage represents
and warrants as follows:
Section 1.1 Organization. Heritage is a corporation duly organized, validly
existing, and in good standing under the laws 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 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 jurisdiction 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 attached Schedules (as hereinafter defined) are
complete and correct copies of the articles of incorporation, bylaws and
amendments thereto of Heritage as in effect on the date hereof. The execution
and delivery of this Agreement does not and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not
violate any provision of Heritage's articles of incorporation or bylaws.
Heritage has full power, authority and legal right and has taken all action
required by law, its articles of incorporation, its bylaws or otherwise to
authorize the execution and delivery of this Agreement.
Section 1.2 Capitalization. The authorized capitalization of Heritage
consists of 100,000,000 Common Shares, $0.001 par value per share, and
20,000,000 Preferred Shares, $0.001 par value. As of the date hereof, Heritage
has 7,919,875 common shares issued and outstanding. Heritage is presently a 1934
Exchange Act reporting company and has filed all necessary reports, quarterly,
annual and special with the Securities and Exchange Commission of the United
States on a timely basis.
All issued and outstanding shares are legally issued, fully paid and
nonassessable and are not issued in violation of the preemptive or other rights
of any person.
Section 1.3 Subsidiaries. Heritage has no subsidiaries.
Section 1.4 Options and Warrants. Heritage currently has 1,325,000 shares
available for issuance at $0.10 a share according to the terms of eight option
agreements originally designated to employees of the company. Such options are
exercisable according to the following schedule:
# OF DATE
---- ----
SHARES VESTED
------ ------
Option #1 granted
1/1/2004 280,000 12/31/2004
350,000 6/30/2005
70,000 6/30/2006
Option #2 granted
7/1/2001 60,000 12/31/2002
75,000 6/30/2004
15,000 6/30/2005
Option #3 granted
7/1/2001 30,000 12/31/2002
37,500 6/30/2004
7,500 6/30/2005
Option #4 granted
7/1/2001 60,000 12/31/2002
75,000 6/30/2004
15,000 6/30/2005
Option #5 granted
7/1/2001 40,000 12/31/2002
50,000 6/30/2004
10,000 6/30/2005
Option #6 granted
7/1/2001 60,000 12/31/2002
75,000 6/30/2004
15,000 6/30/2005
Heritage has no other existing options, warrants, calls or commitments of any
character to which Heritage is a party and by which it is bound. Heritage has no
other securities, warrants or options authorized or issued
Section 1.5 Litigation and Proceedings. To the best of Heritage's knowledge
and belief, there are no actions, suits, proceedings or investigations pending
or threatened by or against Heritage or affecting Heritage 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 that
would have a material adverse affect on the business, operations, financial
condition or income of Heritage. Heritage does not have any knowledge of any
default on its part with respect to any judgment, order, writ, 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 1.6 Material Contract Defaults. To the best of Heritage's knowledge
and belief, Heritage 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
Heritage, and there is no event of default in any material respect under any
such contract, agreement, lease or other commitment in respect of which Heritage
has not taken adequate steps to prevent such a default from occurring.
Section 1.7 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, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Heritage is a
party or to which any of its properties or operations are subject.
Section 1.8 Governmental Authorizations. To the best of Heritage's
knowledge, Heritage has all licenses, franchises, permits or other governmental
authorizations legally required to enable Heritage 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 Heritage of this Agreement and the consummation of
Heritage of the transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF NANO CHEMICAL SYSTEMS
As an inducement to, and to obtain the reliance of Heritage, Nano
represents and warrants as follows:
Section 2.1 Organization. Nano 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 and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign entity in the country or states 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 attached schedules are complete and
correct copies of the certificate of incorporation, memorandum and articles of
association and amendments thereto of Nano as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of Nano's certificate of incorporation or
bylaws. Nano has full power, authority and legal right and has taken all action
required by law, its articles of incorporation, bylaws or otherwise to authorize
the execution and delivery of this Agreement.
Section 2.2 Capitalizations. The authorized capitalization of Nano consists
of 45,000,000 Common shares. As of the date hereof, there are 12,000,000 common
shares issued and outstanding.
Section 2.3 Assets. Nano owns a 100% right, interest and title to the
Assets and has the right transfer all of the Assets to Heritage upon the terms
of this Agreement. The Assets are free and clear of all liens, charges and
encumbrances other than the obligations to seller under the Purchase Agreement
-----------------------------------------------------------------
and interest in the Assets is protected in accordance with provisions of United
States law.
Section 2.4 Tax Matters; Books & Records
(a) The books and records, financial and others, of Nano are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) Nano has no liabilities with respect to the payment of any country,
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties).
Section 2.5 Information. The information concerning Nano as set forth in
this Agreement and in the Nano 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.
Section 2.6 Absence of Certain Changes or Events. Except as described
herein or in the Nano Schedules, since the date of this Agreement, Nano has not
sold, transferred or caused to be placed a lien upon the Assets, and to the best
knowledge of Nano, no such transfer or lien has occurred.
Section 2.7 Title and Related Matters.Nano has good and marketable title to
and is the sole and exclusive owner of all of its properties, inventory,
interests in properties and assets, real and personal (collectively, the
"Assets") free and clear of all liens, pledges, charges or encumbrances. Except
as set forth in the attached Schedules, Nano owns free and clear of any liens,
claims, encumbrances, royalty interests or other restrictions or limitations of
any nature whatsoever and all procedures, techniques, marketing plans, business
plans, methods of management or other information utilized in connection with
Nano's business. Except as set forth in the Nano Schedules, no third party has
any right to, and Nano had 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, proprietary techniques, trademarks, service
marks, trade names or copyrights which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a materially
adverse affect on the business, operations, financial conditions or income of
Nano or any material portion of its properties, assets or rights.
Section 2.8 Litigation and Proceedings. There are no actions, suits or
proceedings pending or, to the best of Nano's knowledge and belief, threatened
by or against or affecting Nano or the Assets, at law or in equity, before any
court or other governmental agency or instrumentality, domestic or foreign or
before any arbitrator of any kind that would have a material adverse effect on
the business, operations, financial condition, income or business prospects of
Nano. Nano does not have any 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.
Section 2.9 Contracts. On the Closing Date:
(a) There are no material contracts, agreements, franchises, license
agreements, or other commitments to which Nano is a party or by
which it or any of its properties are bound;
(b) Nano is not a party to any contract, agreement, commitment or
instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree or
award which materially and adversely affects, or in the future
may (as far as Nano can now foresee) materially and adversely
affect, the business, operations, properties, assets or
conditions of Nano; and
Section 2.10 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, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Nano is a
party or to which any of its properties or operations are subject.
Section 2.11 Material Contract Defaults. To the best of Nano's knowledge
and belief, Nano 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 Nano, and there
is no event of default in any material respect under any such contract,
agreement, lease or other commitment in respect of which Nano has not taken
adequate steps to prevent such a default from occurring.
Section 2.12 Governmental Authorizations. To the best of Nano's knowledge,
Nano 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, 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 Nano of the transactions contemplated hereby.
Section 2.13 Compliance With Laws and Regulations. To the best of Nano's
knowledge and belief, Nano 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
Nano or would not result in Nano's incurring any material liability.
Section 2.14 Insurance. All of the insurable properties of Nano are insured
for Nano's benefit under valid and enforceable policy or policies containing
substantially equivalent coverage and will be outstanding in full force at the
Closing Date.
Section 2.15 Approval of Agreement. The holders of a majority of the Common
Voting Shares outstanding of Nano have authorized the execution and delivery of
the Agreement by Nano and have approved the transactions contemplated hereby.
Section 2.16 Material Transactions or Affiliations. As of the Closing Date,
there will exist no material contract, agreement or arrangement between Nano 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 Nano to own
beneficially, ten percent (10%) or more of the issued and outstanding Common
Shares of Nano and which is to be performed in whole or in part after the date
hereof. Nano has no commitment, whether written or oral, to lend any funds to,
borrow any money from or enter into any other material transactions with, any
such affiliated person.
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
Section 3.1 Xxxx of Sale for Assets. On the Closing Date, Nano shall
deliver to Heritage a xxxx of sale for all of the assets of Nano and any and all
other documents to transfer all of the assets to Heritage.
Section 3.2 Issuance of Heritage Common Shares. In exchange for the
transfer of all of the assets of Nano to Heritage pursuant to Section 3.1,
Heritage shall issue a total of 9,000,000 common restricted shares to the Nano
shareholders. Pursuant to an Escrow Agreement between the parties, such shares
shall be deposited into an escrow account, and held by the Escrow Agent for a
period of one year. The distribution of such shares shall be subject to the
terms of the Escrow Agreement and Lock-up Agreement, executed by the parties at
closing. Such shares shall be restricted under Rule 144 of the 1933 Securities
Act.
Section 3.3 Events Prior to Closing. Upon execution hereof or as soon
thereafter as practical, management of Heritage and Nano shall execute,
acknowledge and deliver (or shall cause 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, 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, subject only to the
conditions to Closing referenced herein below.
Section 3.4 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on January 27, 2005, or another date
mutually agreed upon by all the parties.
Section 3.5 Termination.
(a) This Agreement may be terminated by the board of directors or
majority interest of Shareholders of either Heritage or Nano,
respectively, at any time prior to the Closing Date if:
(i) there shall be any 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 on the advice of its
legal counsel, makes it inadvisable to proceed with the
exchange contemplated by this Agreement; or
(ii) any of the transactions contemplated hereby are disapproved
by any regulatory authority whose approval is required to
consummate such transactions.
In the event of termination pursuant to this paragraph (a) of this Section
3.5, 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 at any time prior to the Closing
Date by action of the board of directors of Heritage if Nano
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 Nano contained herein shall
be inaccurate in any material respect, which noncompliance or
inaccuracy is not cured after 20 days written notice thereof is
given to Nano. If this Agreement is terminated pursuant to this
paragraph (b) of this Section 3.5, this Agreement shall be of no
further force or effect and no obligation, right or liability
shall arise hereunder.
Section 3.6 Directors of Heritage After Acquisition. After the Closing
Date, the following individuals will be appointed to the Board of Directors of
Heritage: Xxxxxxx Xxxxxxx. Each director shall hold office until his successor
shall have been duly elected and shall have qualified or until his earlier
death, resignation or removal.
Section 3.7 Officers of Heritage . Upon the closing, the following persons
shall be elected as officers of Heritage in accordance with procedures set forth
in the Heritage bylaws:
NAME OFFICE
---- ------
Xxxxxxx X. Xxxxxxx President
Xxxxxxx X. Xxxxxxx Secretary
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Prior to closing, Heritage
and Nano will each afford to the officers and authorized representatives of the
other full access to the properties, books and records of each other, in order
that each may have 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 each other, as the other shall from time to time
reasonably request.
Section 4.2 Availability of Rule 144. Nano and Nano shareholders holding
"restricted securities," as that term is defined in Rule 144 promulgated
pursuant to the Securities Act will remain as "restricted securities". Heritage
is under no obligation to register such shares under the Securities Act, or
otherwise. The stockholders of Heritage and Nano holding restricted securities
of Heritage as of the date of this Agreement and their respective heirs,
administrators, personal representatives, successors and assigns, are intended
third party beneficiaries of the provisions set forth herein. The covenants set
forth in this Section 4.2 shall survive the Closing and the consummation of the
transactions herein contemplated.
Section 4.3 Special Covenants and Representations Regarding the Heritage
Common Shares to be Issued in the Exchange. The consummation of this Agreement,
including the issuance of the Heritage Common Shares to the Shareholders of Nano
as contemplated hereby, constitutes the offer and sale of securities under the
Securities Act, and applicable state statutes. Such transaction shall be
consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes which depend, inter alia, upon the
circumstances under which the Nano Shareholders acquire such securities.
Section 4.4 Third Party Consents. Heritage and Nano agree to cooperate with
each other in order to obtain any required third party consents to this
Agreement and the transactions herein contemplated.
Section 4.5 Actions Prior and Subsequent to Closing.
(a) From and after the date of this Agreement until the Closing Date,
except as permitted or contemplated by this Agreement, Heritage
and Nano will each use its best efforts to:
(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) 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,
Nano will not, without the prior consent of Heritage:
(i) sell or transfer any of the Asset;
(ii) place a lien or cause a lien to be placed upon any of the
Assets.
Section 4.6 Indemnification.
(a) Heritage hereby agrees to indemnify Nano and each of the officers,
agents and directors of Nano 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 to or rising out of or based on
any inaccuracy appearing in or misrepresentation made in this
Agreement, including, but not limited to, misrepresentations. The
indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and
termination of this Agreement; and
(b) Nano and its officers and directors hereby agrees to indemnify
Heritage and each of the officers, agents, directors and current
shareholders of Heritage as of the Closing Date 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 in this Agreement. The indemnification provided
for in this Section shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF HERITAGE
The obligations of Heritage under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.1 Accuracy of Representations. The representations and warranties
made by Nano 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 the Closing Date (except for changes therein permitted
by this Agreement), and Nano shall have performed or compiled with all covenants
and conditions required by this Agreement to be performed or complied with by
Nano prior to or at the Closing. Heritage shall be furnished with a certificate,
signed by a duly authorized officer of Nano and dated the Closing Date, to the
foregoing effect.
Section 5.2 Shareholder Approval. A majority of the outstanding Common
Shares of Nano shall have approved this Agreement and the transactions
contemplated herein.
Section 5.3 Officer's Certificate. Heritage shall have been furnished with
a certificate dated the Closing Date and signed by a duly authorized officer of
Nano to the effect that: (a) the representations and warranties of Nano set
forth in the Agreement and in all Exhibits, Schedules and other documents
furnished in connection herewith are in all material respects true and correct
as if made on the Effective Date; (b) Nano has performed all covenants,
satisfied all conditions, and complied with all other terms and provisions of
this Agreement to be performed, satisfied or complied with by it as of the
Effective Date; (c) since such date and other than as previously disclosed to
Heritage, Nano has not entered into any material transaction other than
transactions which are usual and in the ordinary course if its business; and (d)
no litigation, proceeding, investigation or inquiry is pending or, to the best
knowledge of Nano, 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 Nano Schedules, by or against Nano which
might result in any material adverse change in any of the assets, properties,
business or operations of Nano.
Section 5.4 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations of nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the financial condition, business or operations of Nano .
Section 5.5 Other Items. Heritage shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as Heritage may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF NANO
The obligations of Nano under this Agreement are subject to the
satisfaction, at or before the Closing date (unless otherwise indicated herein),
of the following conditions:
Section 6.1 Accuracy of Representations. The representations and warranties
made by Heritage 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, and Heritage shall have performed and complied with
all covenants and conditions required by this Agreement to be performed or
complied with by Heritage prior to or at the Closing. Nano shall have been
furnished with a certificate, signed by a duly authorized executive officer of
Heritage and dated the Closing Date, to the foregoing effect.
Section 6.2 Shareholder Approval. A majority of the outstanding Common
Shares of Heritage shall have approved this Agreement and the transactions
contemplated herein.
Section 6.3 Officer's Certificate. Nano shall be furnished with a
certificate dated the Closing date and signed by a duly authorized officer of
Heritage to the effect that: (a) the representations and warranties of Heritage
set forth in the Agreement and in all Exhibits, Schedules and other documents
furnished in connection herewith are in all material respects true and correct
as if made on the Effective Date; and (b) Heritage had performed all covenants,
satisfied all conditions, and complied with all other terms and provisions of
the Agreement to be performed, satisfied or complied with by it as of the
Effective Date; and (c) since such date and other than as previously disclosed
to Nano, Heritage has not entered into any material transaction other than
transactions which are usual and in the ordinary course if its business; and (d)
no litigation, proceeding, investigation or inquiry is pending or, to the best
knowledge of Heritage, 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 Nano Schedules, by or against Heritage which
might result in any material adverse change in any of the assets, properties,
business or operations of Heritage.
Section 6.4 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations of nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the financial condition, business or operations of Heritage.
Section 6.5 Other Items. Nano shall have received such further documents,
certificates or instruments relating to the transactions contemplated hereby as
Nano may reasonably request.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Brokers and Finders. Each party hereto hereby represents and
warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person not listed in
Schedule 7.1 for any commission, brokerage or finder's fee or other payment with
respect to this Agreement or 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 7.2 Law, Forum and Jurisdiction. This Agreement shall be construed
and interpreted in accordance with the laws of the State of Nevada, United
States of America.
Section 7.3 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Heritage : Xxxxxx & Xxxxxx LLP
000 Xxxxx 0 Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
T: (000) 000-0000
F: (000) 000-0000
If to Nano: Xxxxxxx X. Xxxxxxx
0000 XX Xxxxxx Xxxxxx
Xxxxxxxx, XX 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 as of the date so delivered, mailed or telegraphed.
Section 7.4 Attorneys' Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
Section 7.5 Confidentiality. Each party hereto agrees with the other party
that, unless and until the transactions contemplated by this Agreement have been
consummated, they and their 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 is a matter of public knowledge or is required by law to be
published; and (ii) to the extent that such data or information must be used or
disclosed in order to consummate the transactions contemplated by this
Agreement.
Section 7.6 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 7.7 Third Party Beneficiaries.This contract is solely between
Heritage and Nano and except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this Agreement.
Section 7.8 Entire Agreement.This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. This Agreement alone
fully and completely expresses the agreement of the parties relating to the
subject matter hereof. There are no other courses of dealing, understanding,
agreements, representations or warranties, written or oral, except as set forth
herein. This Agreement may not be amended or modified, except by a written
agreement signed by all parties hereto.
Section 7.9 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 18 months.
Section 7.10 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 7.11 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 be 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 hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section 7.12 Incorporation of Recitals.All of the recitals hereof are
incorporated by this reference and are made a part hereof as though set forth at
length herein.
Section 7.13 Expenses. Each party herein shall bear all of their respective
costs and expenses incurred in connection with the negotiation of this Agreement
and in the consummation of the transactions provided for herein and the
preparation thereof.
Section 7.14 Headings; Context. The headings of the sections and paragraphs
contained in this Agreement are for convenience of reference only and do not
form a part hereof and in no way modify, interpret or construe the meaning of
this Agreement.
Section 7.15 Benefit. This Agreement shall be binding upon and shall inure
only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
Section 7.16 Public Announcements. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto. Notwithstanding same, both parties agree that Heritage will be issuing a
press release regarding this transaction.
Section 7.17 Severability. In the event that any particular provision or
provisions of this Agreement or the other agreements contained herein shall for
any reason hereafter be determined to be unenforceable, or in violation of any
law, governmental order or regulation, such unenforceability or violation shall
not affect the remaining provisions of such agreements, which shall continue in
full force and effect and be binding upon the respective parties hereto.
Section 7.18 Failure of Conditions; Termination. In the event of any of the
conditions specified in this Agreement shall not be fulfilled on or before the
Closing Date, either of the parties have the right either to proceed or, upon
prompt written notice to the other, to terminate and rescind this Agreement
without liability to any other party. The election to proceed shall not affect
the right of such electing party reasonably to require the other party to
continue to use its efforts to fulfill the unmet conditions.
Section 7.19 No Strict Construction. The language of this Agreement shall
be construed as a whole, according to its fair meaning and intendment, and not
strictly for or against either party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or terms or conditions
hereof.
Section 7.20 Execution Knowing and Voluntary; Conflict of Interest. In
executing this Agreement, the parties severally acknowledge and represent that
each: (a) has fully and carefully read and considered this Agreement; (b) has
been or has had the opportunity to be fully apprized by its attorneys of the
legal effect and meaning of this document and all terms and conditions hereof;
(c) is executing this agreement voluntarily, free from any influence, coercion
or duress of any kind.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective officers, hereunto duly authorized, and
entered into as of the date first above written.
ATTEST: HERITAGE SCHOLASTIC CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------- ----------------------------------
Secretary Xxxxxxx Xxxxxxx, President
ATTEST: NANO CHEMICAL SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------- ----------------------------------
Secretary Xxxxxxx Xxxxxxx, President
SCHEDULE A:
Assets of Nano Chemical Systems, Inc.
Assignment for invention entitled: Method for Separating and Enhancing
Photoactive Nanoparticles for UV Protection
Assignment for a provisional application entitled: Preservation of Narrow
Nano-Size Distribution of Particles
Assignment for a provisional application entitled: Semi-conductive
Nanoparticulates Enhanced Surface Appearance
SCHEDULE B:
Distribution of Heritage Common Stock
Xxxxxxx Xxxxxxx 7,000,000 shares
Treya, Inc. 2,000,000 shares
