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Exhibit 2.1
Form 8-K
GTM Holdings, Inc.
File No. 33-33263-NY
AGREEMENT AND PLAN OF SHARE EXCHANGE
Agreement entered into on May 25, 2001 by and between GTM
HOLDINGS, INC.(the "Buyer"),and AMERICAN OVERSEAS INVESTMENT CO.,
(the "Target"). The Buyer and the Target are referred to
collectively herein as the "Parties."
This Agreement contemplates a tax-free share exchange of the
Target with and into the Buyer in reorganization pursuant to Code
Section `368(a)(1)(B). The Target Stockholders will receive
capital stock in the Buyer in exchange for their capital stock in
the Target.
Now, therefore, in consideration of the premises and the
mutual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained, the
Parties agree as follows.
1. Definitions.
"Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act.
"Buyer" has the meaning set forth in the preface above.
"Buyer Share" means any share of the Common Stock, $0.001
par value per share, of the Buyer.
"Closing" has the meaning set forth in `2(b) below.
"Closing Date" has the meaning set forth in `2(b) below.
"Confidential Information" means any information concerning
the businesses and affairs of the Target and its Subsidiaries
that is not already generally available to the public.
"Conversion Ratio" has the meaning set forth in `2(d)(v)
below.
"Nevada General Corporation Law" means the General
Corporation Law of the State of Nevada, as amended.
"Disclosure Schedule" has the meaning set forth in `3 below.
"Exchange Agent" has the meaning set forth in `2(e) below.
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"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"IRS" means the Internal Revenue Service.
"Knowledge" means actual knowledge after reasonable
investigation.
"Share exchange" has the meaning set forth in `2(a) below.
"Most Recent Fiscal Quarter End" has the meaning set forth
in `3(f) below.
"Macau Law" means the General Corporation Law of the Island
of Macau, China.
"Ordinary Course of Business" means the ordinary course of
business consistent with past custom and practice (including with
respect to quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation,
an association, a joint stock company, a trust, a joint venture,
an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"Requisite Buyer Board of Directors Approval" means the
affirmative vote of a majority of the Buyer Directors in favor of
this Agreement and the Share exchange.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Security Interest" means any mortgage, pledge, lien,
encumbrance, charge, or other security interest, other than (a)
mechanic's, materialmen's, and similar liens, (b) liens for taxes
not yet due and payable or for taxes that the taxpayer is
contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under
capital lease arrangements, and (d) other liens arising in the
Ordinary Course of Business and not incurred in connection with
the borrowing of money.
"Subsidiary" means any corporation with respect to which a
specified Person (or a Subsidiary thereof) owns a majority of the
common stock or has the power to vote or direct the voting of
sufficient securities to elect a majority of the directors.
"Surviving Corporation" has the meaning set forth in `2(a)
below.
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"Target" has the meaning set forth in the preface above.
"Target Share" means any share of the Common Stock, $0.001
par value per share, of the Target.
"Target Stockholder" means any Person who or which holds any
Target Shares.
2. Basic Transaction.
(a) The Share exchange. On and subject to the terms and
conditions of this Agreement, the Target will become a wholly
owned subsidiary of the Buyer (the "Share exchange") at the
Effective Time.
(b) The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place
at the offices of the law office of XXXXXX, WALSTRAND &
ASSOCIATES, LLC commencing at 9:00 a.m. local time on the second
business day following the satisfaction or waiver of all
conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with
respect to actions the respective Parties will take at the
Closing itself) or such other date as the Parties may mutually
determine (the "Closing Date"); provided, however, that the
Closing Date shall be no earlier than June 6, 2001.
(c) Actions at the Closing. At the Closing, (i) the Target
and Target Stockholders will deliver to the Buyer the various
certificates, instruments, and documents referred to in Paragraph
6(a) below, (ii) the Buyer will deliver to the Target the various
certificates, instruments, and documents referred to in `6(b)
below, (iii) the Target Stockholders will deliver to the Exchange
Agent as provided below in this paragraph the certificates
evidencing 10,000 shares, and (iv) the Buyer will deliver to the
Exchange Agent in the manner provided below in this paragraph 2
the certificate evidencing the Buyer Shares issued in the Share
exchange.
(d) Effect of Share exchange.
(i) Exchange of Target Shares. At and as of the
Closing Date, (A) each Target Share shall be exchanged into
900 Buyer Shares. (the ratio of one Target share to 900
Buyer Shares is referred to herein as the "Conversion
Ratio"), (B) The Target represents that two shareholders
own, collectively, 10,000 shares of Target shares, and (C)
That the 10,000 shares represented above are one hundred
(100%) percent of the issued and outstanding shares of the
Target, and that no other shares are issued and outstanding.
No Target Share shall be deemed to be outstanding or to have
any rights other than those set forth above in this `2(d)(v)
after the Closing Date.
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(e) Procedure for Payment.
(i) Immediately after the Effective Time, (A) the Buyer
will furnish to the closing attorney (the "Exchange Agent")
two stock certificates issued in the name of the holders of
the Target shares representing 9,000,000 Buyer Shares, and
(B) the Target Shareholder shall deliver a total of 10,000
shares to the Exchange Agent and (C) The Exchange Agent will
then cause the 9,000,000 Buyer shares to be delivered to the
Target Shareholders representing the number of Buyer Shares
to which he or it is entitled as of the date of closing.
(ii) The Buyer shall pay all charges and expenses of
the Exchange Agent.
3. Representations and Warranties of the Target. The Target
represents and warrants to the Buyer that the statements
contained in this paragraph 3 are correct and complete as of the
date of this Agreement and will be correct and complete as of the
Closing Date (as though made then and as though the Closing Date
were substituted for the date of this Agreement throughout this
paragraph 3), except as set forth in the disclosure schedule
accompanying this Agreement and initialed by the Parties (the
"Disclosure Schedule"). The Disclosure Schedule will be arranged
in paragraphs corresponding to the lettered and numbered
paragraphs contained in this paragraph 3.
(a) Organization, Qualification, and Corporate Power. Each
of the Target and its Subsidiaries is a corporation duly
organized, validly existing, and in good standing under the laws
of the jurisdiction of its incorporation. Each of the Target and
its Subsidiaries is duly authorized to conduct business and is in
good standing under the laws of each jurisdiction where such
qualification is required. Each of the Target and its
Subsidiaries has full corporate power and authority to carry on
the businesses in which it is engaged and to own and use the
properties owned and used by it.
(b) Capitalization. The entire authorized capital stock of
the Target consists of 10,000 Target Shares, of which all Target
Shares are issued and outstanding and no Target Shares are held
in treasury. All of the issued and outstanding Target Shares have
been duly authorized and are validly issued, fully paid, and
nonassessable. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion
rights, exchange rights, or other contracts or commitments that
could require the Target to issue, sell, or otherwise cause to
become outstanding any of its capital stock. There are no
outstanding or authorized stock appreciation, phantom stock,
profit participation, or similar rights with respect to the
Target.
(c) Authorization of Transaction. The Target has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder; provided, however, that the Target cannot consummate
the Share exchange unless and until it receives the Requisite
Target Stockholder Approval. This Agreement constitutes the valid
and legally binding obligation of the Target, enforceable in
accordance with its terms and conditions.
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(d) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency, or court to which any of the Target and its Subsidiaries
is subject or any provision of the charter or bylaws of any of
the Target and its Subsidiaries or (ii) conflict with, result in
a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument or other
arrangement to which any of the Target and its Subsidiaries is a
party or by which it is bound or to which any of its assets is
subject (or result in the imposition of any Security Interest
upon any of its assets). Other than in connection with the
provisions of the Nevada General Corporation Law, the Securities
Exchange Act, the Securities Act, and the state securities laws,
none of the Target and its Subsidiaries needs to give any notice
to, make any filing with, or obtain any authorization, consent,
or approval of any government or governmental agency in order for
the Parties to consummate the transactions contemplated by this
Agreement.
(e) Filings with the SEC. The Target will make all filings
with the SEC that it is required to make.
(f) Financial Statements. The financial statements included
in or incorporated by reference have been prepared in accordance
with GAAP applied on a consistent basis throughout the periods
covered thereby and present fairly the financial condition of the
Target and its Subsidiaries as of the indicated dates and the
results of operations of the Target and its Subsidiaries for the
indicated periods; provided, however, that the interim statements
are subject to normal year-end adjustments.
(g) Events Subsequent to Most Recent Fiscal Quarter End.
Since the Most Recent Fiscal Quarter End, there has not been any
material adverse change in the business, financial condition,
operations, results of operations, or future prospects of the
Target and its Subsidiaries taken as a whole.
(h) Undisclosed Liabilities. None of the Target and its
Subsidiaries has any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and
whether due or to become due), including any liability for taxes,
except for (i) liabilities set forth on the face of the balance
sheet dated as of the Most Recent Fiscal Quarter End (rather than
in any notes thereto) and (ii) liabilities which have arisen
after the Most Recent Fiscal Quarter End in the Ordinary Course
of Business (none of which results from, arises out of, relates
to, is in the nature of, or was caused by any breach of contract,
breach of warranty, tort, infringement, or violation of law).
(i) Brokers' Fees. None of the Target and its Subsidiaries
has any liability or obligation to pay any fees or commissions to
any broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
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(j) Continuity of Business Enterprise. The Target operates
at least one significant historic business line, or owns at least
a significant portion of its historic business assets, in each
case within the meaning of Reg. `1.368-1(d).
(k) Disclosure. The Target's statements to its shareholders
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances under
which they will be made, not misleading. None of the information
that the Target will supply will contain any untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements made therein, in the light of the
circumstances under which they will be made, not misleading.
4. Representations and Warranties of the Buyer. The Buyer
represents and warrants to the Target that the statements
contained in this paragraph 4 are correct and complete as of the
date of this Agreement and will be correct and complete as of the
Closing Date (as though made then and as though the Closing Date
were substituted for the date of this Agreement throughout this
paragraph 4), except as set forth in the Disclosure Schedule. The
Disclosure Schedule will be arranged in paragraphs corresponding
to the numbered and lettered paragraphs contained in this
paragraph
(a) Organization. The Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Capitalization. The entire authorized capital stock of
the Buyer consists of 25,000,000 Buyer Shares, of which 2,299,886
Common, 0.001 par value Buyer Shares are issued and outstanding
and no Buyer Shares are held in treasury. All of the Buyer Shares
to be issued in the Share exchange have been duly authorized and,
upon consummation of the Share exchange, will be validly issued,
fully paid, and nonassessable.
(c) Authorization of Transaction. The Buyer has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally
binding obligation of the Buyer, enforceable in accordance with
its terms and conditions.
(d) Noncontravention. To the Knowledge of any director or
officer of the Buyer, neither the execution and the delivery of
this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency, or court to which the Buyer is subject or any provision
of the charter or bylaws of the Buyer or (ii) conflict with,
result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument or other
arrangement to which the Buyer is a party or by which it is bound
or to which any of its assets is subject, except where the
violation, conflict, breach, default, acceleration, termination,
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modification, cancellation, or failure to give notice would not
have a material adverse effect on the ability of the Parties to
consummate the transactions contemplated by this Agreement.
(e) Brokers' Fees. The Buyer does not have any liability or
obligation to pay any fees or commissions to any broker, finder,
or agent with respect to the transactions contemplated by this
Agreement for which any of the Target and its Subsidiaries could
become liable or obligated.
(f) Continuity of Business Enterprise. It is the present
intention of the Buyer to continue at least one significant
historic business line of the Target, or to use at least a
significant portion of the Target's historic business assets in a
business, in each case within the meaning of Reg. `1.368-1(d).
(g) Disclosure. The Buyer's statements to its shareholders
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances under
which they will be made, not misleading. None of the information
that the Buyer will supply will contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements made therein, in the light of the
circumstances under which they will be made, not misleading.
5. Covenants. The Parties agree as follows with respect to
the period from and after the execution of this Agreement.
(a) General. Each of the Parties will use its best efforts
to take all action and to do all things necessary in order to
consummate and make effective the transactions contemplated by
this Agreement (including satisfaction, but not waiver, of the
closing conditions set forth in `6 below).
(b) Notices and Consents. The Target will give any notices
(and will cause each of its Subsidiaries to give any notices) to
third parties, and will use its reasonable best efforts to obtain
(and will cause each of its Subsidiaries to use its reasonable
best efforts to obtain) any third party consents, that the Buyer
reasonably may request in connection with the matters referred to
in paragraph 3(d) above.
(c) Regulatory Matters and Approvals. Each of the Parties
will (and the Target will cause each of its Subsidiaries to) give
any notices to, make any filings with, and use its reasonable
best efforts to obtain any authorizations, consents, and
approvals of governments and governmental agencies in connection
with the matters referred to in paragraph 3(d) and paragraph 4(d)
above. Without limiting the generality of the foregoing:
(i) Macau, China Corporation Law. The Target will call
a special meeting of its stockholders (the "Special Target
Meeting") as soon as practicable in order that the
stockholders may consider and vote upon the adoption of this
Agreement and the
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approval of the Share exchange in accordance with the Macau,
China General Corporation Law.
(d) Operation of Business. The Target will not (and will not
cause or permit any of its Subsidiaries to engage in any
practice, take any action, or enter into any transaction outside
the Ordinary Course of Business). Without limiting the generality
of the foregoing:
(i) none of the Target and its Subsidiaries will
authorize or effect any change in its charter or bylaws;
(ii) none of the Target and its Subsidiaries will grant
any options, warrants, or other rights to purchase or obtain
any of its capital stock or issue, sell, or otherwise
dispose of any of its capital stock (except upon the
conversion or exercise of options, warrants, and other
rights currently outstanding);
(iii) none of the Target and its Subsidiaries will
declare, set aside, or pay any dividend or distribution with
respect to its capital stock (whether in cash or in kind),
or redeem, repurchase, or otherwise acquire any of its
capital stock [, in either case outside the Ordinary Course
of Business];
(iv) none of the Target and its Subsidiaries will issue
any note, bond, or other debt security or create, incur,
assume, or guarantee any indebtedness for borrowed money or
capitalized lease obligation outside the Ordinary Course of
Business;
(v) none of the Target and its Subsidiaries will impose
any Security Interest upon any of its assets outside the
Ordinary Course of Business;
(vi) none of the Target and its Subsidiaries will make
any capital investment in, make any loan to, or acquire the
securities or assets of any other Person outside the
Ordinary Course of Business;
(vii) none of the Target and its Subsidiaries will make
any change in employment terms for any of its directors,
officers, and employees outside the Ordinary Course of
Business; and
(viii) none of the Target and its Subsidiaries will
commit to any of the foregoing.
(e) Full Access. The Target will permit representatives of
the Buyer to have full access to all premises, properties,
personnel, books, records (including tax records), contracts, and
documents of or pertaining to each of the Target and its
Subsidiaries. The Buyer will treat and hold as such any
Confidential Information it receives from any of the Target and
its Subsidiaries in the course of the reviews contemplated by
this paragraph 5(g), will not use any of the Confidential
Information except in connection with this Agreement, and, if
this
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Agreement is terminated for any reason whatsoever, agrees to
return to the Target all tangible embodiments (and all copies)
thereof which are in its possession.
(f) Notice of Developments. Each Party will give prompt
written notice to the other of any material adverse development
causing a breach of any of its own representations and warranties
in paragraph 3 and paragraph 4 above. No disclosure by any Party
pursuant to this paragraph 5(h), however, shall be deemed to
amend or supplement the Disclosure Schedule or to prevent or cure
any misrepresentation, breach of warranty, or breach of covenant.
(g) Continuity of Business Enterprise. The Buyer will
continue at least one significant historic business line of the
Target, or use at least a significant portion of the Target's
historic business assets in a business, in each case within the
meaning of Reg. `1.368-1(d), except that the Buyer may transfer
the Target's historic business assets (i) to a corporation that
is a member of the Buyer's "qualified group," within the meaning
of Reg. `1.368-1(d)(4)(ii), or (ii) to a partnership if (A) one
or more members of the Buyer's "qualified group" have active and
substantial management functions as a partner with respect to the
Target's historic business or (B) members of the Buyer's
"qualified group" in the aggregate own an interest in the
partnership representing a significant interest in the Target's
historic business, in each case within the meaning of Reg. `1.368-
1(d)(4)(iii).
6. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of
the Buyer to consummate the transactions to be performed by it in
connection with the Closing is subject to satisfaction of the
following conditions:
(i) the Target and its Subsidiaries shall have procured
all of the third party consents specified in `5(b) above;
(ii) the representations and warranties set forth in `3
above shall be true and correct in all material respects at
and as of the Closing Date;
(iii) the Target shall have performed and complied with
all of its covenants hereunder in all material respects
through the Closing;
(iv) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or
charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any
of the transactions contemplated by this Agreement to be
rescinded following consummation, (C) affect adversely the
right of the Surviving Corporation to own the former assets,
to operate the former businesses, and to control the former
Subsidiaries of the Target, or (D) affect adversely the
right of any of the former Subsidiaries of the Target to own
its
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assets and to operate its businesses (and no such
injunction, judgment, order, decree, ruling, or charge shall
be in effect);]
(v) the Target shall have delivered to the Buyer a
certificate to the effect that each of the conditions
specified above in paragraph 6(a)(i)-(v) is satisfied in all
respects;
(vi) this Agreement and the Share exchange shall have
received the Requisite Approval from the Buyer's Board of
Directors;
(vii) the Buyer shall have received from counsel to the
Target an opinion in form and substance is deemed
appropriate by the Buyer's counsel, addressed to the Buyer,
and Dated as of the Closing Date;
(viii) all actions to be taken by the Target in
connection with consummation of the transactions
contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Buyer;
(ix) Target shall deliver to Buyer either audited
financial statements or an affidavit stating that the Target
has a Net Worth in excess of $3,000,000.00
The Buyer may waive any condition specified in this
paragraph 6(a) if it executes a writing so stating at or prior to
the Closing.
(b) Conditions to Obligation of the Target. The obligation
of the Target and Target Stockholders to consummate the
transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) this Agreement and the Share exchange shall have
received the Requisite Approval from the Buyer's Board of
Directors;
(ii) the representations and warranties set forth in
paragraph 4 above shall be true and correct in all material
respects at and as of the Closing Date;
(iii) the Buyer shall have performed and complied with
all of its covenants hereunder in all material respects
through the Closing;
(iv) the Buyer shall have delivered to the Target a
certificate to the effect that each of the conditions
specified above in paragraph 6(b)(i)-(vi) is satisfied in
all respects;
(v) the Target shall have received from counsel to the
Buyer an opinion in form and substance as set forth in
Exhibit F attached hereto, addressed to the Target, and
dated as of the Closing Date;
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(vi) all actions to be taken by the Buyer in connection
with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other
documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance
to the Target.
The Target may waive any condition specified in this
paragraph 6(b) if it executes a writing so stating at or prior to
the Closing.
7. Termination.
(a) Termination of Agreement. Either of the Parties may
terminate this Agreement with the prior authorization of its
board of directors (whether before or after stockholder approval)
as provided below:
(i) the Parties may terminate this Agreement by mutual
written consent at any time prior to the Effective Time;
(ii) the Buyer may terminate this Agreement by giving
written notice to the Target at any time prior to the
Effective Time (A) in the event the Target has breached any
material representation, warranty, or covenant contained in
this Agreement in any material respect, the Buyer has
notified the Target of the breach, and the breach has
continued without cure for a period of 30 days after the
notice of breach or (B) if the Closing shall not have
occurred on or before June 13, 2001 by reason of the failure
of any condition precedent under `6(a) hereof (unless the
failure results primarily from the Buyer breaching any
representation, warranty, or covenant contained in this
Agreement);
(iii) the Target may terminate this Agreement by giving
written notice to the Buyer at any time prior to the
Effective Time (A) in the event the Buyer has breached any
material representation, warranty, or covenant contained in
this Agreement in any material respect, the Target has
notified the Buyer of the breach, and the breach has
continued without cure for a period of 30 days after the
notice of breach or (B) if the Closing shall not have
occurred on or before June 13, 2001, by reason of the
failure of any condition precedent under paragraph 6(b)
hereof (unless the failure results primarily from the Target
breaching any representation, warranty, or covenant
contained in this Agreement);
(b) Effect of Termination. If any Party terminates this
Agreement pursuant to paragraph 7(a) above, all rights and
obligations of the Parties hereunder shall terminate without any
liability of any Party to any other Party (except for any
liability of any Party then in breach); provided, however, that
the confidentiality provisions contained in `5(g) above shall
survive any such termination.
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8. Miscellaneous.
(a) Survival. None of the representations, warranties, and
covenants of the Parties (other than the provisions in `2 above
concerning issuance of the Buyer Shares, the provisions in `5(j)
above concerning insurance and indemnification will survive the
Closing Date
(b) Press Releases and Public Announcements. No Party shall
issue any press release or make any public announcement relating
to the subject matter of this Agreement without the prior written
approval of the other Party; provided, however, that any Party
may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the
disclosing Party will use its reasonable best efforts to advise
the other Party prior to making the disclosure).
(c) No Third Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the
Parties and their respective successors and permitted assigns;
provided, however, that (i) the provisions in paragraph 2 above
concerning issuance of the Buyer Shares are intended for the
benefit of the Target Stockholders and (ii) the provisions in
paragraph 5(j) above concerning insurance and indemnification are
intended for the benefit of the individuals specified therein and
their respective legal representatives.
(d) Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement
between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written
or oral, to the extent they related in any way to the subject
matter hereof.
(e) Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Parties named herein
and their respective successors and permitted assignees. No Party
may assign either this Agreement or any of its rights, interests,
or obligations hereunder without the prior written approval of
the other Party.
(f) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
(g) Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect
in any way the meaning or interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall be
deemed duly given if (and then two business days after) it is
sent by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set
forth below:
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If to the Target:
American Overseas Investment Co.
Attn. Xxxxxxx Xxxxxx, President
Avenue Xx. Xxxxxxx Xxxxxxxxx
00xx Xxxxx, Xxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxx
Fax #: (853)711288
If to the Buyer:
GTM Holdings, Inc.
Attn. Xxx Xxxxxxx, President
0000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Fax #: (000)000-0000
Any Party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex,
ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the
intended recipient. Any Party may change the address to which
notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Nevada without giving effect to any choice or conflict of law
provision or rule (whether of the State of Nevada or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Nevada.
(j) Amendments and Waivers. The Parties may mutually amend
any provision of this Agreement at any time prior to the
Effective Time with the prior authorization of their respective
boards of directors; provided, however, that any amendment
effected subsequent to stockholder approval will be subject to
the restrictions contained in the Nevada General Corporation Law.
No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by both of the
Parties. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability
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of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of the Parties will bear its own costs
and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated
hereby.
(m) Construction. The Parties have participated jointly in
the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless
the context otherwise requires. The word "including" shall mean
including without limitation.
(n) Incorporation of Exhibits and Schedules. The Exhibits
and Schedules identified in this Agreement are incorporated
herein by reference and made a part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement on [as of] the date first above written.
BUYER:
/s/ Xxx Xxxxxxx, President
GTM Holdings, Inc.
TARGET:
/s/ Xxxxx Xxxxxx, President
American Overseas Investment Co.
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