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EXHIBIT 10(a)
AGREEMENT
CONCERNING THE EXCHANGE OF COMMON STOCK
BETWEEN
TEXAS EQUIPMENT CO., INC.
AND
MARINEX MULTIMEDIA CORPORATION
INDEX
ARTICLE I - EXCHANGE OF SECURITIES ...................... 6
1.1 - Issuance of Shares ................................. 6
1.2 - Exemption from Registration ........................ 6
1.3 - Covenants Not to Compete ........................... 6
1.4 - Assignment of Copyrights ........................... 6
1.5 - Reservation of Shares .............................. 6
1.6 - ReConstitution of Board; Resignation of Officers and
- Directors .......................................... 7
1.7 - Proceeds of Marinex ................................ 7
1.8 - Rights of Registration ............................. 7
1.9 - Agreement Binding Upon Shareholders ................ 8
1.10 - Operation of Marinex - New York .................... 8
1.11 - Employment Agreements of Xxxxx and Xxxxxxx;
Option to Acquire Additional Interest in
Marinex - New York ................................ 8
1.12 - Employee Stock Options ............................. 10
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ARTICLE II - REPRESENTATIONS AND WARRANTIES
OF TEXAS EQUIPMENT .............................. 10
2.1 - Organization ......................................... 10
2.2 - Capital .............................................. 11
2.3 - Subsidiaries ......................................... 11
2.4 - Directors and Officers ............................... 11
2.5 - Financial Statements ................................. 11
2.6 - Absence of Changes ................................... 13
2.7 - Absence of Undisclosed Liabilities ................... 13
2.8 - Tax Returns .......................................... 13
2.9 - Investigation of Financial Condition ................. 13
2.10 - Patents, Trade Names and Rights ...................... 14
2.11 - Compliance with Laws ................................. 14
2.12 - Litigation ........................................... 14
2.13 - Authority ............................................ 14
2.14 - Ability to Carry Out Obligations ..................... 14
2.15 - Full Disclosure ...................................... 15
2.16 - Assets ............................................... 15
2.17 - Material Contracts; Xxxx Deere & Company ............. 15
2.18 - Indemnification of Officers and Directors ............ 15
2.19 - Retention of Public Relations Firm ................... 16
2.20 - Additional Warranties of Texas Equipment ............. 16
ARTICLE III - REPRESENTATIONS AND WARRANTIES
OF MARINEX ..................................... 16
3.1 - Organization ......................................... 16
3.2 - Capital .............................................. 17
3.3 - Subsidiaries ......................................... 17
3.4 - Directors and Officers ............................... 18
3.5 - Financial Statements ................................. 18
3.6 - Updated Financial Statements ......................... 18
3.7 - Absence of Undisclosed Liabilities ................... 18
3.8 - Tax Returns .......................................... 18
3.9 - Investigation of Financial Condition ................. 19
3.10 - Patents, Trade Names and Rights ...................... 19
3.11 - Compliance with Laws ................................. 19
3.12 - Litigation ........................................... 19
3.13 - Authority ............................................ 19
3.14 - Ability to Carry Out Obligations ..................... 19
3.15 - Full Disclosure ...................................... 20
3.16 - Assets ............................................... 20
3.17 - Material Contracts ................................... 20
3.18 - Market for Company Stock ............................. 20
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3.19 - Registration of Shares .............................. 20
3.20 - Additional Warranties of Marinex .................... 21
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
OF TEXAS EQUIPMENT SHAREHOLDERS ............. 21
4.1 - Share Ownership ..................................... 21
4.2 - Investment Intent ................................... 22
4.3 - Legend .............................................. 23
ARTICLE V - COVENANTS ................................... 23
5.1 - Investigative Rights ............................... 23
5.2 - Conduct of Business ................................ 23
ARTICLE VI - CONDITIONS PRECEDENT TO MARINEX'S
PERFORMANCE ................................. 23
6.1 - Conditions ......................................... 23
6.2 - Accuracy of Representations ........................ 24
6.3 - Performance ........................................ 24
6.4 - Absence of Litigation .............................. 24
6.5 - Officer's Certificate .............................. 24
6.6 - Legal Opinion ...................................... 24
6.7 - Auditor's Opinion .................................. 24
ARTICLE VII - CONDITIONS PRECEDENT TO TEXAS
EQUIPMENT'S PERFORMANCE ..................... 24
7.1 - Conditions ......................................... 24
7.2 - Accuracy of Representations ........................ 25
7.3 - Performance ........................................ 25
7.4 - Absence of Litigation .............................. 25
7.5 - Current Status ..................................... 25
7.6 - Directors of Marinex .............................. 25
7.7 - Officers of Marinex ................................ 25
7.8 - Assets of Marinex .................................. 26
7.9 - Officer's Certificate .............................. 26
7.10 - Legal Opinion ...................................... 26
ARTICLE VIII - CLOSING ..................................... 26
8.1 - Closing ............................................ 26
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ARTICLE IX - MISCELLANEOUS ............................. 27
9.1 - Captions and Headings .............................. 27
9.2 - No Oral Change ...................................... 27
9.3 - Non-Waiver .......................................... 27
9.4 - Time of Essence ..................................... 27
9.5 - Entire Agreement .................................... 27
9.6 - Choice of Law ....................................... 27
9.7 - Counterparts ........................................ 28
9.8 - Notices ............................................. 28
9.9 - Binding Effect ...................................... 28
9.10 - Mutual Cooperation .................................. 28
9.11 - Brokers ............................................. 28
9.12 - Announcements ....................................... 28
9.13 - Expenses ............................................ 29
9.14 - Survival of Representations and 29
Warranties .......................................... 29
9.15 - Exhibits ............................................ 29
- Signatures .......................................... 29
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AGREEMENT
THIS AGREEMENT made this 17th day of September, 1996, by and between
MARINEX MULTIMEDIA CORPORATION, a Nevada corporation ("Marinex" or
"Marinex Nevada"), and TEXAS EQUIPMENT CO., INC., a Texas Corporation
("Texas Equipment").
WHEREAS, Marinex desires to acquire all of the shares of common stock
of Texas Equipment in exchange for an aggregate of 16,850,000
authorized but unissued shares of the common stock of Marinex, par
value $0.001;
WHEREAS, Texas Equipment is a privately held Texas corporation engaged
in the retail distribution of farm equipment, with all its issued and
outstanding shares being held in equal amounts by the three children of
its founder, Xx. Xxxx Xxxxxx;
WHEREAS, Marinex is a publicly held company (NASD Bulletin Board
symbol "MRNX") having become public by a transaction in February, 1996.
Marinex has one subsidiary, Marinex Multimedia Corp., a New York
corporation, ("Marinex -New York") with offices in New York, New York;
WHEREAS, all business operations and activities (other than those
connected with the securities and corporate laws) are conducted through
the New York subsidiary, which is engaged in the business of creation
of digital content, including a CD-ROM-only magazine entitled "Trouble
& Attitude"; a site on the world wide web known generally as "The Biz
Entertainment CyberNetwork" (xxxx://xxx/xxxxxx.xxx); and a site on the
world wide web known generally as "The East Village"
(xxxx://xxx/xxxxxxxxxxx.xxx). The web site properties can also be
accessed through Time-Warner's Pathfinder site. Thus, the public
company remains a holding company without business operations whose
sole asset is its ownership of the operating New York subsidiary. For
clarity, the public holding company may be referred to as Marinex
Nevada and the operating multimedia subsidiary will be referred to as
Marinex New York; and
WHEREAS, Texas Equipment desires to assist Marinex in acquiring all of
the issued and outstanding shares of Texas Equipment pursuant to the
terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants
and representations contained herein, THE PARTIES AGREE AS FOLLOWS:
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ARTICLE I
EXCHANGE OF SECURITIES
1.1 Issuance of Shares. Subject to all the terms and conditions of
this Agreement, Marinex agrees to exchange 16,850,000 fully paid and
nonassessable unregistered shares of its $0.001 par value common stock
("Marinex Shares") in exchange for all of the shares of Texas
Equipment, including all issued and outstanding common stock of Texas
Equipment. Marinex Shares shall be exchanged pro rata for the Shares
of Texas Equipment held by the existing Shareholders, whose names are
set forth in Exhibit 1.1A hereto. The Marinex Shares will be issued
directly to holders of the Texas Equipment Shares on the Closing Date.
1.2 Exemption from Registration. The parties hereto intend that
the Marinex Shares to be issued to the holders of the Texas Equipment
Shares shall be exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Act"), pursuant to Section
4(2) of the Act and the rules and regulations promulgated thereunder.
1.3 Covenants Not To Compete. At closing, Marinex shall enter into
a binding covenants not to compete with Xx. Xxxxxxx Xxxxxxx and Xx.
Xxxxxxxx Xxxxx, the current executive officers of Marinex, the terms
of which shall bar the Employee from engaging in a business that
directly competes with the farm equipment distribution business of the
Company, within the continental United States and Mexico, for a period
of at least twenty four months from the date of acquisition.
1.4 Assignment of Copyrights. To the best of its knowledge, Texas
Equipment is not infringing upon or otherwise acting adversely to the
right or claimed right of any person with respect to all copyrighted or
trademarked material or other propriety or incorporeal rights, and
products used in its business. The Company has not been notified that
it is in violation of or infringing upon any third party's rights in or
to any copyrighted or trademarked material.
1.5 Reservation of Shares. The parties agree that an option for
250,000 common voting shares (in addition to the amount to be exchanged
to Texas Equipment shareholders) at an option price of $1.00 shall be
issued to the Company's counsel, Xxxxxxx Xxxxxxx, Attorney at Law, 0000
Xxxxxxxx Xxxx Xxxxx, Xxxxxxxxx, XX 00000-0000, or his designees, in
consideration of attorneys fees and investment banking fees in
connection with his assistance in the introduction, negotiation and
structuring of the acquisition. The option shall be valid for a period
of five years from the Closing Date. Upon payment of the exercise
price of $1.00, the Company shall cause 250,000 shares to be issued
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from the authorized but unissued capital stock of the Company.
The Company agrees to reserve sufficient shares at all times during the
life of the option with which to fulfill its obligations hereunder.
Neither party has engaged any other finders, consultants, or investment
bankers with respect to the consummation of this Agreement.
1.6 Reconstitution of Board; Resignation of Officers and Directors. At
the Closing (contemplated to occur on or about September 13,
1996), the Board of Directors of the Company shall consist of three
board members of which two board members will be designees of Texas
Equipment and one designee of Platkin and Xxxxx or designee for a
minimum of two years. A resolution will also be submitted for
shareholder approval which provides, among other things, for a nine
member board of directors of which the Texas Equipment shareholders
agree to vote for three designees appointed by Xxxxx and Platkin and
Xxxxx and Xxxxxxx agree to vote for the designees of Texas Equipment
for the remaining board seats.
Contemporaneously with the acquisition, the remaining officers,
directors, counsel and accountants for Marinex shall tender their
resignations, from all capacities, of the Company. The existing
Directors shall appoint successors at the direction of Texas
Equipment's shareholders and then shall immediately resign. All
existing officers of Marinex shall tender their resignations, from all
capacities, and the newly appointed Directors shall appoint new
officers.
1.7 Proceeds of Marinex. At closing, all existing current
liabilities of Marinex Nevada shall be paid off and approximately
$100,000 will be paid to existing noteholders, leaving cash assets of
approximately $1.85 Million. The net cash on the date of closing will be
divided equally between Marinex - Nevada and Marinex - New York for
working capital purposes. If the amount available to Marinex - Nevada is
less than $925,000 on the Closing Date, the Transaction may be canceled
by the Shareholders of Texas Equipment. Closing proceeds shall be made
payable to Texas Equipment Co., Inc.
All funds are presently in accounts in the name of the Marinex - New
York on a "seven day" CD rollover, which permits withdrawals without
penalty each Friday. Closing shall be set so that the withdrawal may be
conducted on Friday. The Officers of Marinex - New York shall present to
Texas Equipment at closing either an irrevocable wire transfer
instruction or an official, certified, or bank check in favor of Marinex
- Nevada, or shall make such other transfer arrangements as permit the
transfer of the funds without penalty.
1.8 Rights of Registration. The parties respectively acknowledge
the restrictions upon sale of private stock as provided for in
Commission Rules 144 and 145.
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1.9 Agreement Binding Upon Shareholders. By accepting the shares
of Marinex offered hereby, each Shareholder of Texas Equipment
acknowledges the existence of this Agreement and covenants as follows:
(a) that the terms and conditions of this Agreement are binding
upon the Shareholder to the same extent as if the shareholder had been
a signatory hereto;
(b) that the shares of Marinex distributed to shareholder shall be
appropriately legended;
(c) the shareholder waives any dissenter's rights, rights of
appraisal, or other remedies available under any applicable state or
federal law by reason of the acquisition contemplated hereunder;
(d) the shareholder waives any rights or claims which might
otherwise exist under any right of action for any shareholder
derivative suit, claims of corporate mismanagement, malfeasance, or
negligence, claims for rescission, and any and all other claims against
Texas Equipment, Marinex, and their respective officers, directors,
accountants, attorneys and agents which result from the consummation of
this Agreement.
1.10 Operation of Marinex - New York. Marinex - New York will be
governed after the acquisition under the guidance of a three member
Board of Directors which shall include Xx. Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxxx Xxxxx (or their designees) and a third member designated by
Marinex - Nevada. Xx. Xxxxx and Xx. Xxxxxxx shall continue in their
respective capacities as officers of Marinex - New York subject to the
employment provisions contained elsewhere herein.
Each member of the Board of Directors of Marinex New York
will be elected for a five year term or the longest period permitted
by law, which may not be altered except upon exercise of the options
and voting trusts to Messrs. Xxxxx and Platkin as set forth herein.
1.11 Employment Agreements of Xxxxx and Xxxxxxx; Option to Acquire
Additional Interest in Marinex - New York. Xxxxxxxx Xxxxx and Xxxxxxx
X. Xxxxxxx presently have extensive Employment Agreements with Marinex
- Nevada. Xxxxx and Platkin hereby agree to cancel, release and waive
all remaining rights under those Employment Agreements. Management and
control of Marinex - Nevada shall be conferred initially upon the
designees of Texas Equipment and thereafter in accordance with the
votes of the shareholders. In addition, Messrs. Xxxxx and Xxxxxxx will
execute covenants not to compete as contained in 1.3.
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In further consideration of the cancellation of the Employment
Agreements with the public, parent company, a stock option in the
wholly owned subsidiary Marinex - New York will be issued to Xx.
Xxxxxxxx Xxxxx and Xx. Xxxxxxx X. Xxxxxxx. This option will permit
Messrs. Xxxxx and Platkin to purchase 25% ownership each (for a total
of 50%) in Marinex New York for an exercise price of $1.00. The option
may be exercised, in the sole discretion of the Option holder, upon the
happening of one or more of the following corporate events:
(a) Bona Fide offer to purchase the interest of Xxxxx and/or Platkin
or any sale of an interest in excess of 10% in Marinex New York;
(b) Bankruptcy, insolvency, receivership, dissolution or liquidation
of Texas Equipment or any other action under which Texas Equipment seeks
legal or equitable relief from its creditors;
(c) Reorganization, recombination, declaration of a stock dividend
of Marinex - New York stock by Marinex - Nevada;
(d) Sale or spin out of either subsidiary;
(e) Merger under which control of Marinex - Nevada is changed or
acquisition under which shares totaling more than 25% of the
outstanding stock of Marinex - Nevada is issued;
(f) Any event which requires approval of 2/3 or more of the
shareholders of the Company or which constitutes a fundamental change
under Nevada corporate law, as amended;
(g) Public offering of shares totaling 10% or more of Marinex -
New York, including securities which convert into shares such as
warrants, options, convertible debentures or debt instruments and other
convertible securities.
(h) Upon dilution of the holdings of the present Marinex - Nevada
shareholders (as of the day before the Closing Date) by more than 20%
during the first two years following the Closing Date (or a series of
actions which, when combined, cause such dilution) which, unless the
issuances were issued at no more than a 50% discount from the average
bid price for the thirty day period prior to the issuance;
(i) or any other similar event or occurrence that fundamentally
alters the nature of the relationship between Xxxxx and/or Platkin and
the Company.
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Upon the options have been triggered by any of the above
occurrences, then the Option shall remain open and exerciseable for a
period of five years. For purposes of this paragraph, the shares
issued pursuant to the existing options to Xxxxxxx Xxxxxxx and
pursuant to the Marinex Employees Stock Option Plan shall be excluded
from the computations.
In consideration of the cancellation of Employment Agreements as
to Marinex Nevada, attached Employment Agreements will be executed by
Marinex New York to Xx. Xxxxx and Xx. Xxxxxxx under which Messrs.
Xxxxx and Platkin will serve Marinex - New York in capacities
identical to those now served on behalf of Marinex - Nevada.
Upon the exercise of the option by Messrs. Platkin and Xxxxx,
Marinex Nevada will enter into a voting trust agreement whereby all of
the shares of Marinex - New York held by Marinex Nevada will be voted,
in equal amounts, by Messrs. Xxxxx and Platkin, or their designee, for
15 years (or the longest period allowed by law), renewable in ten year
increments (or the longest period allowed by law).
1.12 Employee Stock Options. The Company also agrees to maintain the
existing employee stock option plan including the Company's obligation
to register the shares and to provide for shares to fund the plan, up
to 475,000 shares initially. The employee stock option plan is
dedicated to existing Marinex employees, agents, consultants, actors
and shareholders and includes an option price of $4.00 per share.
Since all authorized but unissued shares presently available will be
depleted in connection with the Transaction, Texas Equipment agrees to
increase the authorized capital in an amount at least sufficient to
fund the employee stock option shares. To the extent that shareholder
permission is required to effect the stock option plan, then the Texas
Equipment shareholders agree to vote all of their shares in favor of
the adoption, ratification and/or continuation of the plan and to
submit the matter to a vote of shareholders within 20 days of the
Closing Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF TEXAS EQUIPMENT
Texas Equipment hereby represents and warrants to Marinex that:
2.1 Organization. Texas Equipment is a corporation duly organized
on December 14, 1987, validly existing and in good standing under the
laws of Texas, has all necessary corporate powers to own its properties
and to carry on its business as now owned and operated by it, and is
duly qualified to do
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business and is in good standing in each of the states where its
business requires qualification.
2.2 Capital. The authorized capital stock of Texas Equipment
consists solely of 100,000 of $ no par value common stock, of which
60,000 shares are issued and outstanding. Marinex shares will be
issued prorata to the shareholders listed in the Shareholder's List
which shall be included as an Exhibit to this Agreement. All of the
issued and outstanding shares of Texas Equipment are duly and validly
issued, fully paid and nonassessable. There are no outstanding
subscriptions, options, rights, warrants, debentures, instruments,
convertible securities or other agreements or commitments obligating
Texas Equipment to issue or to transfer from treasury any additional
shares of its capital stock of any class.
2.3 Subsidiaries. Texas Equipment has no subsidiaries, affiliated
companies or other associated entities and does not own any interest in
any other enterprise. Texas Equipment shall become a wholly owned
subsidiary of Marinex by exchanging all authorized, issued, and
outstanding shares to Marinex in consideration of this Exchange
Agreement.
2.4 Directors and Officers. Exhibit 2.4 hereto contains the names
and titles of all directors and officers of Texas Equipment as of the
date of this Agreement. It is contemplated that the present officers
and directors, auditors and agents of Texas Equipment will remain in
their respective capacities subsequent to the Transaction.
2.5 Financial Statements. Texas Equipment has not yet procured
audited financial statements but that the firm of Xxxxxxx, Xxxxxx has
been engaged to audit Texas Equipment. In lieu of audited financial
statements, Texas Equipment has furnished unaudited statements for the
years 1992 through 1995, a copy of which is incorporated herein by
reference and included as Exhibit 2.5.
Texas Equipment has engaged Xxxxxxx, Xxxxxxx & Company, CPAs, of
Odessa, Texas to prepare audited financial statements within the time
allowed by Form 8-K in accordance with the requirements of Regulation
S-X as promulgated by the Securities & Exchange Commission. At closing,
Texas Equipment shall furnish a statement from the auditors to the
effect that a sufficient examination has been conducted to determine
that the financial statements of Texas Equipment are auditable and that
they have no basis to believe that a materially adverse adjustment will
be required to any of the unaudited financial statements previously
furnished to Marinex.
Texas Equipment management warrants that the figures fairly
present the financial position of Texas Equipment as of the dates of
the balance
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sheets included in the financial statements and the results
of operations for the periods indicated. The unaudited statement
presented to Marinex management indicated, inter alia, December 31,
1995 figures as follows:
Assets $ 8,518,611
Stockholder's Equity 3,008,311
Revenues $25,015,591
Net After Tax Income 600,000.
The parties acknowledge that the figures contained in four of the
1995 columns, assets, stockholder's equity, revenues or net income,
have been relied upon by Marinex management and form a material aspect
upon which the Transaction has been agreed upon. In the event that the
audited figures (including adjustments required by Regulation S-X for
financial statement presentation) for any of the four 1995 columns fall
10% or more below the represented figures, then the Texas Equipment
shareholders agree to return shares on a pro rata basis to the Marinex
treasury as follows. The actual percentage shortfall of the column with
the greatest percentage difference shall be used. The excess shortfall
shall be multiplied by the number of shares issued to Texas Equipment
Shareholders. The product will equal the number of shares to be
returned by Texas Equipment shareholders.
Texas Equipment has also furnished internal unaudited accounting
records as of July 31, 1996 indicating assets in excess of $10 Million
and shareholder's equity of $3,988,000. The Company represents that it
expects to be profitable in 1996 with revenues in excess of $25
Million with net pretax income in excess of $1.7 Million. If the
audited figures for the fiscal year ended December 31, 1996 exhibit a
shortfall of greater than 10% for either revenues or earnings,
additional shares will be returned to the treasury of the Company on
the same basis as stated above. In making the computations, only the
operational performance of Texas Equipment for the year ending December
31, 1996 will be considered and charges or losses related to Marinex
Nevada or Marinex New York shall not be pooled or otherwise included.
By way of example, if the largest shortfall in any column equals
15%, then the computations shall be determined as follows:
15% (total shortfall of the column
with the largest percentage shortfall)
-10% The permissible deviation from the submitted numbers
----
5% Impermissible difference
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16,850,000 Shares issued
X .05 Impermissible Difference
----------
842,500 Shares to be returned to Treasury
Thus, each Texas Equipment Shareholder would be required to return
a prorata share of the number derived and each Texas Equipment
Shareholder hereby agrees to authorize management to cancel a
sufficient number of shares to effect the intents of this paragraph.
There will be no shortfall, however, if the downward adjustment is
matched by an upward adjustment greater than 10% in either the net
income or stockholder's equity columns.
All parties are aware that the financial statements presented
would support the requirements for the listing of the Company's
securities on the NASDAQ exchange and it is the intention of the
parties to promptly file for such listing.
2.6 Absence of Changes. Since the date of Texas Equipment's most
recent financial statements included in Exhibit 2.5, there has not been
any undisclosed changes in the financial condition or operations of
Texas Equipment, except for changes in the ordinary course of business,
which changes have not in the aggregate been materially adverse.
Notwithstanding, a parcel of real estate has been reconveyed in
anticipation of this Agreement.
2.7 Absence of Undisclosed Liabilities. As of the date of Texas
Equipment's most recent balance sheet included in Exhibit 2.5, Texas
Equipment did not have any material debt, liability or obligation of
any nature, whether accrued, absolute, contingent or otherwise, and
whether due or to become due, that is not reflected in such balance
sheet.
2.8 Tax Returns. Within the times and in the manner prescribed by
law, Texas Equipment has filed all federal, state and local tax returns
required by law and has paid all taxes, assessments and penalties due
and payable except for those for which returns are not yet due. The
provisions for taxes, if any, reflected in Exhibit 2.5 are adequate for
the periods indicated. There are no present disputes as to taxes of
any nature payable by Texas Equipment. In addition, there are no
deficiencies, past or present, in any withholding, sales, or similar
taxes which invoke fiduciary capacities. There are presently no offer
and compromise agreements pertaining to work out arrangements, payouts
or similar timed payments for state or federal employee withholding
taxes, sales taxes, unemployment taxes, or other noncompliance with
respect to withholding or tax liabilities.
2.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein,
Marinex and its legal counsel, accountants and representatives have
met with Texas Equipment's accountants and representatives to discuss
the financial condition
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of Texas Equipment. Texas Equipment has made available to Marinex all
books and records of Texas Equipment and there are no separate books
and records, undisclosed accounts, payments, or any transactions that
are not in accordance with generally accepted accounting techniques or
which violate the Foreign Corrupt Practices Act, or similar state or
federal law. The Texas Equipment shareholders shall also prepare and
sign standard due diligence and officer/director questionnaires, which
all parties agree form a material basis for this
Agreement.
2.10 Patents, Trade Names and Rights. To the best of its
knowledge, Texas Equipment is not infringing upon or otherwise acting
adversely to the right or claimed right of any person with respect to
patents, trade names and rights.
2.11 Compliance with Laws. Texas Equipment has complied with, and
is not in violation of, applicable federal, state or local statutes,
laws and regulations (including, without limitation, and to the
knowledge of the officers of The Texas Equipment, any applicable
building, zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business.
2.12 Litigation. Texas Equipment is not a defendant to any suit,
action, arbitration or legal, administrative or other proceeding, or
governmental investigation which is pending or, to the best knowledge
of Texas Equipment, threatened against or affecting Texas Equipment
which could have a materially adverse impact on Texas Equipment or its
business, assets or financial condition. There have been no threats or
demands, outside the ordinary course Texas Equipment, with respect to
threatened litigation or other malfeasance or nonfeasance. Texas
Equipment is not in default with respect to any order, writ, injunction
or decree of any federal, state, local or foreign court, department,
agency or instrumentality applicable to it. Texas Equipment is not
engaged in any material lawsuits to recover monies due it.
2.13 Authority. The Board of Directors of Texas Equipment has
authorized the execution of this Agreement and the consummation of the
transactions contemplated herein, and Texas Equipment has full power
and authority to execute, deliver and perform this Agreement, and this
Agreement is a legal, valid and binding obligation of Texas Equipment
and is enforceable in accordance with its terms and conditions.
2.14 Ability to Carry Out Obligations. The execution and delivery
of this Agreement by Texas Equipment and the performance by Texas
Equipment of its obligations hereunder in the time and manner
contemplated will not cause, constitute or conflict with or result in
(a) any breach or violation of any of the provisions of or constitute
a default under any license, indenture, mortgage, instrument, article
of incorporation, bylaw, or other agreement or instrument to
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which Texas Equipment is a party, or by which it may be bound, nor will
any consents or authorizations of any party other than those hereto be
required; (b) an event that would permit any party to any agreement or
instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of Texas Equipment; or (c) an event
that would result in the creation or imposition of any lien, charge
or encumbrance on any asset of Texas Equipment.
2.15 Full Disclosure. None of the representations and warranties
made by Texas Equipment herein or in any exhibit, certificate or
memorandum furnished or to be furnished by Texas Equipment, or on its
behalf, contains or will contain any untrue statement of material fact
or omit any material fact the omission of which would be misleading.
2.16 Assets. Texas Equipment has good and marketable title to all
of its properties, free and clear of all liens, claims and
encumbrances, except as otherwise indicated in Exhibit 2.5. Texas
Equipment presently has three retail farm equipment sales locations in
Pecos, Plains and Seminole, Texas.
2.17 Material Contracts; Xxxx Deere & Company. Texas Equipment
has no material contracts other than distribution agreements with Xxxx
Deere & Company. Texas Equipment is a distributor of farm machinery and
equipment through Xxxx Deere & Company ("Deere"); has good relations
with Deere and is in compliance and good standing with all material
terms, conditions and agreements with Deere. Texas Equipment represents
that Deere has been apprised of its intention to become acquired by a
public company; to advance a business plan under which the present
company seeks acquisitions of Deere distributors in the United States
and abroad; and Texas Equipment has received verbal assurance from
Deere to the effect that Deere has no objection to any of these
activities. Nothing contained in this Agreement or the related Exhibits
shall cause a default in any of the agreements with Deere.
Texas Equipment also has agreements and relationships with area
banks for a variety of routine services, including the financing of
certain debt, all as shown on the financial statements and in the
regular course of business. Although these relationships change from
time to time, Texas Equipment has no reason to presently suspect or
actual knowledge that any changes in those arrangements are
forthcoming.
2.18 Indemnification of Officers and Directors. The parties
acknowledge and agree that prior to execution of this Agreement, each
party had separately adopted resolutions and bylaws affording
indemnification, to the fullest extent permitted by law, of all
officers, directors, promoters, attorneys and other responsible
persons, past or present. The parties hereby agree that each shall,
to the fullest extent permitted by law, retain and maintain such
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indemnification provisions with respect to its officers and directors
and that each party shall hereafter continuously maintain the fullest
indemnification of officers and directors, past, present and future, as
permitted by law, including officers and directors in Marinex - Nevada,
Marinex - New York, and Texas Equipment and specifically Messrs. Xxxxx
and Platkin.
2.19 Retention of Public Relations Firm. For at least two years
from the date of acquisition, Marinex Nevada shall retain public
relations personnel experienced in handling investor relations and
related securities matters. This person or firm capacities may be, but
need not be, the persons that have previously served in those
capacities.
2.20 Additional Warranties of Texas Equipment. Texas Equipment
hereby represents and warrants that:
(a) It is a corporation in good standing in its jurisdictions and has the
authority to perform under this Agreement and Texas Equipment has the ability
to obtain audited financial statements as required by Regulation S-X, with no
material deviations from generally accepted accounting principles and that the
financial statements shall have an unqualified opinion of its auditor;
(b) It has not entered into the operation of any business, acquired any
properties, entered into any leases or entered into any contracts which would
materially affect its financial condition except as disclosed;
(c) It has not executed a presently binding Letter of Intent, Acquisition
Agreement, Merger Agreement, or similar agreement with any other company, firm,
entity, or individual, nor has it entered into any finders, investment banking
or similar corporate finance consulting contract;
(d) The consummation of the transactions contemplated by this Agreement,
including the closing thereupon, shall not cause a breach of any other contract
or agreement.
(e) It has furnished to Marinex full disclosure, has divulged true,
accurate and complete information with respect to all items requested, is in
compliance with applicable law, and is not a party defendant to any material
litigation or governmental investigation;
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MARINEX
Marinex represents and warrants to Texas Equipment that:
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3.1 Organization. Marinex is a corporation duly organized, validly
existing and in good standing under the laws of Nevada, has all
necessary corporate powers to own its properties and to carry on its
business as now owned and operated by it, and has not been qualified to
do business in any other state, including New York.
3.2 Capital. The authorized capital stock of Marinex Multimedia
Corporation, formerly known as Hard Funding, Inc., consists of
25,000,000 shares of common stock, par value $0.001 of which
approximately 7,800,000 shares of common stock are currently issued and
outstanding, of which 9,775 shares were sold to the public in the
initial public offering pursuant to the Company's Public Offering, as
filed with the Atlanta Regional Office of the Securities and Exchange
Commission on a Form SB-2 Registration Statement.
A total of 9,775 shares of voting common stock, as defined in the
Prospectus, were sold pursuant thereto and an additional 340 shares
were issued to the underwriter as a portion of the underwriting
compensation. Hard Funding had an authorized capital consisting of
25,000,000 voting common shares, par value $.001 per share. Following
the Hard Funding offering, 510,115 shares were issued and outstanding.
On February 12, 1996, Hard Funding acquired Marinex through a
process generally referred to as a "reverse merger." Hard Funding,
with its 510,115 shares outstanding, caused 4,000,000 shares of its
authorized but unissued shares to be issued to the shareholders of
Marinex in exchange for all of the outstanding shares of Marinex.
As a result of the combination, the Marinex New York shareholders
obtained control of 89% of the outstanding voting shares of Hard
Funding. Marinex became a wholly owned subsidiary of Hard Funding. To
avoid confusion in the marketplace, Hard Funding then changed its name
to Marinex Multimedia Corporation. All business operations and
activities (other than those connected with the securities and corporate
laws) are conducted through the New York subsidiary. All of the issued
and outstanding shares are duly and validly issued, fully paid and
nonassessable. There are no outstanding subscriptions, options, rights,
warrants, debentures, instruments, convertible securities or other
agreements, commitments or obligations of Marinex to issue or to
transfer from treasury any additional shares of its capital stock of any
class, except as heretofore sold, transferred and reserved in connection
with the public offering, the Exchange Agreement of February 12, 1996,
the Regulation S offerings of February 12, 1996 and June, 1996, and
private offerings exempt from registration.
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3.3 Subsidiaries. Marinex has one subsidiary, Marinex Multimedia
Corporation, ("Marinex - New York") a corporation duly organized on
January 6, 1995, validly existing and in good standing under the laws
of New York. Marinex - New York has all necessary corporate powers to
own its properties and to carry on its business as now owned and
operated by it, and is duly qualified to do business and is in good
standing in each of the states where its business requires
qualification.
Marinex - New York intends to continue to be engaged in the digital
content business and related business endeavors in the United States
and elsewhere.
3.4 Directors and Officers. The names and titles of all directors
and officers of Marinex as of the date of this Agreement are: Xxxxxxxx
Xxxxx, President and Secretary and Xxxxxxx X. Xxxxxxx, President. The
Company presently has two Directors, being Xx. Xxxxx and Xx. Xxxxxxx.
It is expected that Xx. Xxxxx and Xx. Xxxxxxx will continue to serve as
directors of Marinex - New York as set forth below.
3.5 Financial Statements. The financial statements filed with
Forms 10-KSB and 10-QSB have been prepared in accordance with generally
accepted accounting principles and practices consistently followed by
Marinex throughout the period indicated, and fairly present the
financial position of Marinex as of the date of the balance sheet
included in the financial statements and the results of operations for
the period indicated. Marinex - Nevada shall be solely responsible for
the preparation and filing of all required reports from the Closing
date at the sole expense of Marinex - Nevada, although the officers of
Marinex - New York will provide all reasonable assistance and
documentation with respect to the portion of the filings pertaining to
Marinex - New York.
3.6 Updated Financial Statements. An unaudited financial statement
for the period ending September 30, 1996 shall be prepared by the
Company and shall be furnished to management in connection with
preparation of the Company's Form 10-QSB for the period ending
September 30, 1996 as soon as received.
3.7 Absence of Undisclosed Liabilities. As of the date of the
updated financial statements, Marinex - Nevada did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not
reflected in such balance sheet.
3.8 Tax Returns. Within the times and in the manner prescribed by
law, Marinex has filed all federal, state and local tax returns
required by law, and has paid all taxes, assessments, and penalties due
and payable. The provision for taxes, if any, reflected in the
updated financial statements, are
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adequate for the period indicated. There are no present disputes as
to taxes of any nature payable by Marinex.
3.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein,
Texas Equipment and its legal counsel and accountants has had the
opportunity to meet with Marinex's legal counsel and accountants to
discuss the financial condition of Marinex. Marinex has made available
to Texas Equipment all books and records of Marinex.
3.10 Patents, Trade Names and Rights. To the best of its
knowledge, Marinex is not infringing upon or otherwise acting adversely
to the right or claimed right of any person with respect to any of the
foregoing.
3.11 Compliance with Laws. Marinex has complied with, and is not
in violation of, applicable federal, state or local statutes, laws and
regulations (including, without limitation, any applicable building,
zoning or other law, ordinance or regulation) affecting its properties
or the operation of its business.
3.12 Litigation. Marinex is not a party to any material suit,
action, arbitration or legal, administrative or other proceeding, or
governmental investigation which is pending or, to the best knowledge
of Marinex threatened against or affecting Marinex or its business,
assets or financial condition. Marinex is not in default with respect
to any order, writ, injunction or decree of any federal, state, local
or foreign court, department, agency or instrumentality applicable to
it. Marinex is not engaged in any material lawsuits to recover monies
due it.
3.13 Authority. The Board of Directors of Marinex has authorized
the execution of this Agreement and the consummation of the
transactions contemplated herein, and Marinex has full power and
authority to execute, deliver and perform this Agreement, and this
Agreement is a legal, valid and binding obligation of Marinex and is
enforceable in accordance with its terms and conditions.
3.14 Ability to Carry Out Obligations. The execution and delivery
of this Agreement by Marinex and the performance by Marinex of its
obligations hereunder in the time and manner contemplated will not
cause, constitute or conflict with or result in (a) any breach or
violation of any of the provisions of or constitute a default under any
license, indenture, mortgage, instrument, article of incorporation,
bylaw, or other agreement or instrument to which Marinex is a party, or
by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required; (b) an event that would
permit any party to any agreement or instrument to terminate it or to
accelerate the maturity of any indebtedness or other obligation of
Marinex; or (c) an event that would
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result in the creation or imposition of any lien, charge or
encumbrance on any asset of Marinex.
3.15 Full Disclosure. None of the representations and warranties
made by Marinex herein or in any exhibit, certificate or memorandum
furnished or to be furnished by Marinex or on its behalf, contains or
will contain any untrue statement of material fact or omit any material
fact the omission of which would be misleading.
3.16 Assets. Marinex has good and marketable title to all of its
property, free and clear of all liens, claims and encumbrances.
3.17 Material Contracts. Marinex has no other undisclosed
material contracts with any other party and no other agreement shall be
breached by the entry of this Acquisition Agreement.
3.18 Market for Company Stock. Marinex has been advised that from
time to time up to six (6) NASD members have made markets in the
Company's common stock pursuant to the Rules and regulations of the
NASD. The Company's stock has been given the symbol "MRNX" and is
trading from time to time on the NASD bulletin board. While the Company
has no arrangements or understanding with any market maker to make or
maintain any market, the Company has no knowledge of any intention to
terminate making markets in the securities by any of its present market
makers.
3.19 Registration of Shares. The Company at its expense will
register all of the presently held shares of Xxxxx and Platkin, and the
shares to be issued to Xxxxxxx (including shares underlying options) on
or before February 12, 1997. If the shares are not registered pursuant
to an effective registration statement by February 12, 1997, then the
Company agrees to buy back 57,000 of the shares held by Xx. Xxxxx and
57,000 of the shares held by Xx. Xxxxxxx on February 13, 1997. The
price per share will be the greater of (a) $2.00 or (b) 50% of the
lowest average published bid price for the 10 business days preceding
the buy back. If the shares are not registered thereafter, a buy back
of an equal amount at the same pricing formula will occur on the first
business day of each quarter thereafter until
(a) all of the remaining shares are registered by an
effective registration statement and freely tradable (except as to
restrictions on affiliates); or
(b) The restrictive legend on the shares have been removed
and the shares are eligible to be freely traded by Rule 144 or
similar exemption from the registration requirements; or
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(c) all shares have been purchased.
Notwithstanding, it is the intention of the parties that all
shares will be registered (or otherwise freely tradable) at the
soonest possible time and Marinex - Nevada will use its best
efforts to effect such registration. Marinex - Nevada and its
officers and directors will use their best efforts to effectuate
the provisions of this paragraph 3.19. Time is of the essence.
3.20 Additional Warranties of Marinex,
Marinex hereby represents and warrants to Texas Equipment:
(a) That the representations in its securities filings were
materially true and accurate as of the filing date and management knows
of no facts or circumstance which now renders any portion thereof
materially false, nor which would require disclosure through press
release, Form 8-K or otherwise;
(b) It has not entered into the operation of any business,
acquired any properties, entered into any leases or entered into any
contracts which would materially affect its financial condition except
as disclosed and all leases and contracts to the multimedia business,
including the leased premises, are in the name of the Marinex - New
York entity and are not co-signed or guaranteed by Marinex - Nevada;
(c) It has not executed a presently binding Letter of Intent,
Acquisition Agreement, Merger Agreement, or similar agreement with any
other company, firm, entity, or individual;
(d) The consummation of this transaction, including the execution
of the Definitive Agreement, or closing thereupon, shall not cause a
breach of any other contract or agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TEXAS EQUIPMENT
SHAREHOLDERS
By execution of Exhibit 1.2 hereto, the Texas Equipment will
represent, among other things, that:
4.1 Share Ownership. The Texas Equipment shareholders hold the
number of Texas Equipment Shares set forth in Exhibit 1.1A hereto.
Such shares are owned of record and beneficially by each holder thereof
and are not subject to any lien, encumbrances, hypothecation or pledge.
Each Texas
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Equipment shareholder has the authority to exchange such shares
pursuant to this Agreement.
4.2 Investment Intent. Each Texas Equipment shareholder
understands that the Marinex Shares are being offered for exchange in
reliance upon the exemption provided in Section 4(2) of the Act for
nonpublic offerings and that:
(a) The Marinex Shares are being acquired for the account of
each Texas Equipment shareholder, for investment purposes only, and
not with a view to, or for sale in connection with, any distribution
thereof and with no present intention of distributing or reselling any
part of the Marinex Shares;
(b) Each Texas Equipment shareholder will not dispose of the
Marinex Shares or any portion thereof unless and until counsel for
Marinex shall have determined that the intended disposition is
permissible and does not violate the Act or any applicable state
securities laws, or the rules and regulations thereunder;
(c) Marinex has made all documentation pertaining to all
aspects of the Exchange Offer available to him and to his qualified
representatives, if any, and has offered such person or persons any
opportunity to discuss the Exchange Offer with the officers of Marinex;
(d) Each Texas Equipment shareholder has relied solely upon
Marinex's Prospectus dated October 26, 1993, the filings with the SEC
subsequent to that date and any independent investigations made by such
shareholder or his representatives;
(e) Each Texas Equipment shareholder is knowledgeable and
experienced in making and evaluating investments of this nature and
desires to accept the Marinex Shares on the terms and conditions set
forth;
(f) Each Texas Equipment shareholder is able to bear the
economic risk of an investment in the Marinex Shares;
(g) Each Texas Equipment shareholder understands that an
investment in the Marinex Shares is not liquid, and such shareholder
has adequate means of providing for current needs and personal
contingencies and has no need for liquidity in this investment;
(h) Each Texas Equipment shareholder agrees to abide by the
terms of this Agreement, including the provisions hereof contained in
Section 2 pertaining to the surrender of stock in the event that audited
financial statements of Texas Equipment reveal a material variance
from the 1995 unaudited figures
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submitted to Marinex and the similar provisions in the event
that the 1996 projections of Texas Equipment prove materially
overstated. Each Shareholder waives all rights to dissent, appraisal
and suit as per paragraph 1.9 (d).
4.3 Legend. Each Texas Equipment shareholder acknowledges that the
certificates evidencing the Marinex Shares acquired pursuant to this
Agreement will have a legend placed thereon stating that the Marinex
Shares have not been registered under the Act or any state securities
laws and setting forth or referring to the restrictions on
transferability and sale of the Marinex Shares.
ARTICLE V
COVENANTS
5.1 Investigative Rights. From the date of this Agreement until
the Closing Date, each party shall provide to the other party, and such
other party's counsel, accountants, auditors and other authorized
representatives, full access during normal business hours and upon
reasonable advance written notice to all of each party's properties,
books, contracts, commitments and records for the purpose of examining
the same. Each party shall furnish the other party with all
information concerning each party's affairs as the other party may
reasonably request.
5.2 Conduct of Business. Prior to Closing, Marinex and Texas
Equipment shall each conduct its business in the normal course and
shall not sell, pledge or assign any assets without the prior written
approval of the other party, except in the normal course of business.
Neither party shall amend its Articles of Incorporation or Bylaws
(except as may be described in this Agreement), declare dividends,
redeem or sell stock or other securities, incur additional or
newly-funded liabilities, acquire or dispose of fixed assets, change
employment terms, enter into any material or long-term contract,
guarantee obligations of any third party, settle or discharge any
balance sheet receivable for less than its stated amount, pay more on
any liability than its stated amount, or enter into any other
transaction other than in the normal course of business.
ARTICLE VI
CONDITIONS PRECEDENT TO MARINEX'S PERFORMANCE
6.1 Conditions. Marinex's obligations hereunder shall be subject
to the satisfaction at or before the Closing of all the conditions set
forth in this Article VI. Marinex may waive any or all of these
conditions in whole or in part
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without prior notice; provided, however, that no such waiver
of a condition shall constitute a waiver by Marinex of any other
condition of or any of Marinex's other rights or remedies, at law or in
equity, if Texas Equipment shall be in default of any of its
representations, warranties or covenants under this Agreement.
6.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by Texas Equipment
in this Agreement or in any written statement that shall be delivered
to Marinex by Texas Equipment under this Agreement shall be true and
accurate on and as of the Closing Date as though made at that time.
6.3 Performance. Texas Equipment shall have performed, satisfied
and complied with all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it on or before the
Closing Date.
6.4 Absence of Litigation. No action, suit or proceeding before
any court or any governmental body or authority, pertaining to the
transaction contemplated by this Agreement or to its consummation,
shall have been instituted or threatened against Texas Equipment on or
before the Closing Date. The Company has no knowledge of any threatened
litigation, claims or demands, except as disclosed in their unaudited
financial statements.
6.5 Officer's Certificate. Texas Equipment shall have delivered to
Marinex a certificate dated the Closing Date and signed by the
President of Texas Equipment certifying that each of the conditions
specified in Sections 6.1 through 6.7 hereof have been fulfilled.
6.6 Legal Opinion. Marinex shall have received an opinion of
Xxxxxxx X. Xxxxxx, Attorney at Law, substantially in the form attached
hereto as Exhibit 6.6, dated as of the Closing Date.
6.7 Auditor's Opinion. Marinex shall have received an opinion of
Xxxxxxx, Xxxxxxx & Company, CPAs, to the effect that the books and
records of Texas Equipment are auditable in form and substance as
required by Regulation S-X within the time permitted by law.
ARTICLE VII
CONDITIONS PRECEDENT TO TEXAS EQUIPMENT 'S PERFORMANCE
7.1 Conditions. Texas Equipment's obligations hereunder shall be
subject to the satisfaction at or before the Closing of all the
conditions set forth in this Article VII. Texas Equipment may waive
any or all of these conditions
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in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by Texas
Equipment of any other condition of or any of Texas Equipment other
rights or remedies, at law or in equity, if Marinex shall be in default
of any of its representations, warranties or covenants under this
Agreement.
7.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by Marinex in this
Agreement or in any written statement that shall be delivered to Texas
Equipment by Marinex under this Agreement shall be true and accurate on
and as of the Closing Date as though made at that time.
7.3 Performance. Marinex shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it on or before the
Closing Date.
7.4 Absence of Litigation. No action, suit or proceeding before
any court or any governmental body or authority, pertaining to the
transaction contemplated by this Agreement or to its consummation,
shall have been instituted or threatened against Marinex on or before
the Closing Date.
7.5 Current Status. Marinex shall have prepared and filed with the
Securities and Exchange Commission all periodic reports required to be
filed prior to the closing date by Section 13 or 15(d), or otherwise
required under the Securities Exchange Act of 1934, as amended.
7.6 Directors of Marinex. Effective on Closing, Marinex shall have
fixed the size of its Board of Directors of not less than three nor
more than nine directors. The Texas Equipment shareholders agree, for a
period of two years hereafter, to vote in favor of designees of Xx.
Xxxxxxx Xxxxxxx and Xx. Xxxxxxxx Xxxxx for 1/3 of the available Board
seats. For a period of two years hereafter, Xx. Xxxxxxx Xxxxxxx and Xx.
Xxxxxxxx Xxxxx agree to vote in favor of designees of Texas Equipment
for 2/3 of the available Board seats. Each of the present directors of
Marinex shall have submitted his resignation as a director of Marinex
effective on the Closing Date and shall be reappointed, if at all, in
accordance with the above.
7.7 Officers of Marinex. Effective on the Closing Date, Marinex
shall elect new officers of Marinex to consist of, at least, the
following persons:
Xxxx Xxxxxx Chief Executive Officer
Xxxx Xxxxxx Secretary
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7.8 Assets of Marinex. On the Closing Date, the assets of Marinex
are expected to include, net of all current liabilities, at least
$1,850,000 in cash; and no shall be no unpaid liabilities except in the
ordinary course of business.
7.9 Officer's Certificate. Marinex shall have delivered to Texas
Equipment a certificate dated the Closing Date and signed by the
President of Marinex certifying that each of the conditions specified
in Sections 7.1 through 7.8 hereof have been fulfilled.
7.10 Legal Opinion. Texas Equipment shall have received an opinion
of Xxxxxxx Xxxxxxx, Attorney at Law, substantially in the form attached
hereto as Exhibit 7.10, dated as of the Closing Date.
ARTICLE VIII
CLOSING
8.1 Closing. The closing this transaction shall be held at the
offices of Marinex Communications, The Soho Building, Suite 800, 000
Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 or such other place as shall be
mutually agreed upon, at any mutually agreeable time prior to September
13, 1996. At the closing:
(a) Texas Equipment shall deliver to Marinex copies of
Exhibit 1.2 executed by all of its shareholders together with
certificates or stock powers representing all of the outstanding Texas
Equipment Shares duly endorsed to Marinex;
(b) Marinex shall deliver to each Texas Equipment shareholder
certificates representing the number of Marinex Shares for which the
Texas Equipment Shares have been exchanged, pursuant to the share
computations set forth in Exhibit 1.1A hereto;
(c) Marinex shall deliver (i) an officer's certificate dated
the Closing Date, that all representations, warranties, covenants and
conditions set forth in this Agreement on behalf of Marinex are true
and correct as of, or have been fully performed and complied with by,
the Closing Date and (ii) the legal opinion of its counsel as set forth
in Exhibit 7.10;
(d) Marinex shall deliver a signed consent and/or Minutes of
the Meetings of the Board of Directors and Shareholders of Marinex
approving this Agreement and each matter to be approved by the
directors of Marinex under this Agreement;
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(e) Texas Equipment shall deliver (i) an officer's certificate
dated the Closing Date, that all representations, warranties, covenants
and conditions set forth in this Agreement on behalf of Texas Equipment
are true and correct as of, or have been fully performed and complied
with by, the Closing Date and (ii) the legal opinion of its counsel;
and
(f) Texas Equipment shall deliver a signed consent and/or
minutes of the directors of Texas Equipment approving this Agreement
and each matter to be approved by the directors of Texas Equipment
under this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Captions and Headings. The article and paragraph headings
throughout this Agreement are for convenience and reference only and
shall not define, limit or add to the meaning of any provision of this
Agreement.
9.2 No Oral Change. This Agreement and any provision hereof may
not be waived, changed, modified or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of
any such waiver, change, modification or discharge is sought.
9.3 Non-Waiver. The failure of any party to insist in any one or
more cases upon the performance of any of the provisions, covenants or
conditions of this Agreement or to exercise any option herein contained
shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants or conditions. No waiver by any party
of one breach by another party shall be construed as a waiver with
respect to any other subsequent breach.
9.4 Time of Essence. Time is of the essence of this Agreement and
of each and every provision.
9.5 Entire Agreement. This Agreement contains the entire Agreement
and understanding between the parties hereto and supersedes all prior
agreements and understandings.
9.6 Choice of Law. This Agreement and its application shall be
governed by the laws of the State of Nevada.
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9.7 Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
9.8 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of service if served
personally on the party to whom notice is to be given, or on the third
day after mailing if mailed to the party to whom notice is to be given,
by first class mail, registered or certified, postage prepaid, and
properly addressed as follows:
Marinex Multimedia Corporation
Attention: Xxxxxxx Xxxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Texas Equipment Co., Inc.
Attention: Xx. Xxxx Xxxxxx
Texas Equipment, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
9.9 Binding Effect. This Agreement shall inure to and be binding
upon the heirs, executors, personal representatives, successors and
assigns of each of the parties to this Agreement.
9.10 Mutual Cooperation. The parties hereto shall cooperate with
each other to achieve the purpose of this Agreement and shall execute
such other and further documents and take such other and further
actions as may be necessary or convenient to effect the transaction
described herein.
9.11 Brokers. The parties hereto represent that no broker has
brought about this Agreement, and no finder's fee has been paid or is
payable by Marinex except as to legal and investment banking fees to
Xxxxxxx Xxxxxxx or his designees. Each party hereto shall indemnify
and hold the other harmless against any and all claims, losses,
liabilities or expenses which may be asserted against it as a result of
its dealings, arrangements or agreements with any other such broker.
9.12 Announcements. The parties will consult and cooperate with
each other as to the timing and content of any public announcements
regarding this Agreement.
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9.13 Expenses. Each party will pay its own legal, accounting and
other out of pocket expenses incurred in connection with this
Agreement, whether or not this Agreement is consummated.
9.14 Survival of Representations and Warranties. The
representations, warranties, covenants and agreements of the parties
set forth in this Agreement or in any instrument, certificate, opinion
or other writing providing for in it, shall survive the Closing.
9.15 Exhibits. As of the execution hereof, the parties have
provided each other with the exhibits described herein. Any material
changes to the exhibits shall be immediately disclosed to the other
party.
AGREED AND ACCEPTED as of the date first above written.
MARINEX MULTIMEDIA CORPORATION,
A NEVADA CORPORATION
By:
-------------------------------------
Xxxxxxx X. Xxxxxxx President
ATTEST:
---------------------------
Xxxxxxxx Xxxxx
Corporate Secretary
TEXAS EQUIPMENT CO., INC.
BY:
----------------------------------
ATTEST:
---------------------------
Corporate Secretary
[corporate seal]
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