PLAN OF ACQUISITION
This agreement and plan of acquisition (the "Agreement") dated December 20,
1996, by and between Universal Filtration Industries, Inc.., a New York
corporation, the address of which is ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ("Universal Filtration"), and ▇▇▇▇▇ Industries, Inc., a Idaho
corporation, the address of which is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ("▇▇▇▇▇" or the "Acquiring Corporation") [Universal Filtration and ▇▇▇▇▇
being herein sometimes called the "Parties" or "Constituent Corporations"].
WHEREAS, the Parties orally agreed on February 10, 1996, that ▇▇▇▇▇ would
exchange shares of its common stock for all the issued and outstanding capital
stock of Universal Filtration; and
WHEREAS, the Parties entered into an agreement dated August 7, 1996 embodying
the oral understandings; and
WHEREAS, the Parties have agreed to modify the agreement because certain
representations of Universal relating to revenue and profitability projections
have not been met;
WHEREAS, the Parties desire to enter into a new restated written document which
will replace any and all prior oral and written understandings between the
Parties.
NOW THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE UNDERTAKINGS HEREINAFTER
STATED, THE PARTIES AGREE AS FOLLOWS:
I. ACQUIRING CORPORATION; CERTIFICATE OF INCORPORATION AND BY-LAWS; BOARD OF
DIRECTORS; OFFICERS.
1.01 Acquiring Corporation.
The corporation which shall be the acquiring corporation is ▇▇▇▇▇. 1.02
Certificate of Incorporation and By-laws.
The certificate of incorporation, as amended, and the by-laws of ▇▇▇▇▇ as
contained in Attachment "A" are in effect at the date of the Agreement are the
certificate of incorporation and the by-laws of the Acquiring Corporation until
they are amended.
1.03 Board of Directors. From the date of the Agreement until December 31, 1999,
the ▇▇▇▇▇ board of directors shall consist of not more than three
directors.
II. STATUS AND CONVERSION OF SECURITIES
2.01 Shares of Universal Filtration
(a) Universal Filtration Common Stock. All the shares of the common stock of
Universal Filtration ("Universal Filtration Shares") shall be converted
into and exchanged for 1,000,000 shares of common stock, ("▇▇▇▇▇ Shares")
of ▇▇▇▇▇ ("▇▇▇▇▇ Common Stock") valued at $.05 per share. Certificates
representing 1,000,000 ▇▇▇▇▇ Shares shall be immediately delivered to the
shareholders of Universal Filtration.
(b) Surrender and Exchange of Universal Filtration Shares. Subject to the
provisions of Paragraphs 2.01(b) and (c), each holder of an outstanding
certificate or certificates (the "Old Certificates") therefore representing
Universal Filtration Shares ("Universal Filtration Shareholder"), upon
surrender thereof shall receive in exchange therefore a certificate or
certificates (the "New Certificates") representing the number of whole
▇▇▇▇▇ Shares into and for which the Universal Filtration Shares therefore
represented by such surrendered Old Certificates have been converted. There
are no dividends due to holders of Universal Filtration Shares. Filtration
shall provide written instructions to ▇▇▇▇▇ indicating the number of ▇▇▇▇▇
Shares and to be issued to each Universal Filtration Shareholder. Shares
not surrendered shall be marked as canceled on the stock registry of the
Company.
(c) "Current Market Price Per Share" of one share of ▇▇▇▇▇ Common Stock shall
be the average closing price of the shares of the NASD Electronic Bulletin
Board for the five trading days preceding the date of the Agreement.
(d) "Value Per Share" of one share of ▇▇▇▇▇ Common Stock shall be S.05 per
share.
(e) No certificates or scrip for fractional ▇▇▇▇▇ Shares will be issued and no
payment will be made in respect thereof. Any fractional shares which result
shall be rounded up to the nearest whole ▇▇▇▇▇ Share. If more than one
certificate representing Universal Filtration Shares shall be surrendered
for the account of the same Shareholder, the number of full ▇▇▇▇▇ Shares
for which certificates shall be delivered to a Shareholder shall be
computed on the basis of the aggregate number of shares represented by the
certificates surrendered by that Shareholder.
III. COVENANTS
3.01 Covenants of ▇▇▇▇▇
▇▇▇▇▇ covenants, that:
(a) Certificate of Incorporation. No amendment, change of state of
incorporation or other change has been made in the certificate of
incorporation of ▇▇▇▇▇ as attached to the Agreement.
(b) Securities. There are 7,192,929 Shares outstanding.
(c) Dividends and Purchases of Stock. No dividend, distribution or stock split
or recapitalization has been authorized, declared, paid or effected by
▇▇▇▇▇ in respect of the outstanding ▇▇▇▇▇ Shares.
(d) Borrowing Money. ▇▇▇▇▇ has not borrowed, guaranteed the borrowing of money,
engaged in any transaction or entered into any material agreement, except
in the ordinary course of business.
(e) Access. ▇▇▇▇▇ has afforded the officers, directors, employees, counsel,
agents, investment bankers, accountants and other representatives of
Universal Filtration free and full access to the properties, books and
records of ▇▇▇▇▇, has permitted them to make extracts from and copies of
such books and records and has furnished Universal Filtration with such
additional financial and operating data and other information as to the
financial condition, results or operations, business, properties, assets,
liabilities or future prospects of ▇▇▇▇▇ as Universal Filtration from time
to time has requested.
(f) Confidentiality. ▇▇▇▇▇ insures that, for a period of six months from the
date of the Agreement, all confidential information which ▇▇▇▇▇ or any of
its officers, directors, employees, counsel, agents, investment bankers, or
accountants may now possess or create or obtain relating to the financial
condition, results of operations, business properties, assets, liabilities,
or future prospects of Universal Filtration, any affiliate or any customer
or supplier of Universal Filtration shall not be published, disclosed, or
made accessible to any other person or entity at any time or used in the
business and for the benefit of ▇▇▇▇▇ in each case without the prior
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President, subject to paragraphs 3.01 (g)
and (h).
(g) Public Statements. Before ▇▇▇▇▇ releases any information concerning the
Agreement, or any of the other transactions contemplated by the Agreement
which is intended for or may result in public dissemination thereof, ▇▇▇▇▇,
for a period of six months from the date of the Agreement, shall cooperate
with Universal Filtration, shall furnish drafts of all documents or
proposed oral statements to Universal Filtration for comments, and shall
not release any such information without the written consent of Universal
Filtration. Nothing contained herein shall prevent ▇▇▇▇▇ from releasing any
information if required to do so by federal or state securities law.
(h) Material for Registration Statement. ▇▇▇▇▇ represents that the filings to
be made by it with the Securities and Exchange Commission ("SEC") will be
prepared in accordance with the then existing requirements of the
Securities Act of 1933 (the "Securities Act"), and the rules and
regulations thereunder. ▇▇▇▇▇ shall furnish or cause to be furnished, for
inclusion in any registration statement required to be filed with the SEC
covering the Acquisition, information about ▇▇▇▇▇ or ▇▇▇▇▇'▇ security
holders as may be required and shall continue to famish or cause to be
furnished such information for the purposes of supplementing any such proxy
statement or amending any registration statement.
(i) Indemnification. ▇▇▇▇▇ agrees to indemnify and hold harmless Universal
Filtration and its present officers, directors, employees, agents and
counsel, and each person who controls, controlled or will control Universal
Filtration within the meaning of Section 15 of the Securities Act of
Section 20(a) or the Securities Exchange Act of 1934 (the "Exchange Act")
and if the Acquisition is abandoned or terminated, except solely as a
result of a breach of the Agreement by Universal Filtration, against any
and all losses, liabilities, claims, damages and expenses whatsoever,
including attorneys' fees and expenses, as and when incurred arising out
of, based upon or in connection with any untrue statement or alleged untrue
statement of a material fact relating to and supplied by ▇▇▇▇▇ contained in
any post-effective registration statement, proxy statement or any amendment
or supplement thereto or any application or other document or communication
filed in any jurisdiction under the "blue-sky," securities, or takeover
laws thereof or filed with the SEC. The foregoing agreement to indemnify
shall be in addition to any liability ▇▇▇▇▇ may otherwise have, including
liabilities arising under the Agreement.
3.02 Covenants of Universal Filtration From the Date of the Agreement
(a) Certificate of Incorporation and By-laws. No amendment has been made in the
certificate of incorporation or by-laws of Universal Filtration other than
as attached hereto as Attachment "B".
(b) Dividends and Purchases of Stock. No dividend, distribution or stock split
or recapitalization has been authorized, declared, paid or effected by
Universal Filtration in respect of the outstanding Universal Filtration
Shares.
(c) Borrowing Money. Universal Filtration has not borrowed, guaranteed the
borrowing of money, engaged in any transaction or entered into any material
agreement, except in the ordinary course of business as disclosed in the
financial statements delivered to ▇▇▇▇▇.
(d) Access. Universal Filtration has afforded the officers, directors,
employees, counsel, agents, investment bankers, accountants and other
representatives of ▇▇▇▇▇ and lenders, investors and prospective lenders and
investors free and full access to the properties, books and records of
Universal Filtration and has permitted them to make extracts from and
copies of such books and records, and will from time to time furnish ▇▇▇▇▇
with such additional financial and operating data and other information as
to the financial condition, results or operations, business, properties,
assets, liabilities or future prospects of Universal Filtration as ▇▇▇▇▇
from time to time has requested. Universal Filtration will cause the
independent certified public accountants of Universal Filtration to make
available to ▇▇▇▇▇ and its independent certified public accountants all
work papers relating to Universal Filtration referred to herein.
(e) Conduct of Business. Universal Filtration has used reasonable efforts to
preserve the business operations of Universal Filtration intact, to keep
available the services of is present personnel, to preserve in full force
and effect the contracts, agreements, instruments, leases, licenses,
arrangements and understandings of Universal Filtration and to preserve the
good will to others having business relations with it.
(f) Advice of Changes. Universal Filtration has advised ▇▇▇▇▇ of any fact or
occurrence or any pending or threatened occurrence of which it obtains
knowledge and (i) which, would make the performance by any party of a
covenant contained in the Agreement impossible or make such performance
materially more difficult than in the absence of such fact or occurrence or
(ii) which would cause a condition to any party's obligation under the
Agreement not to be fully satisfied.
(g) Confidentiality. Universal Filtration shall insure that all confidential
information which Universal Filtration or any of its officers, directors,
employees, counsel, agents, investment bankers, or accountants may now
possess or may hereafter create or obtain relating to the financial
condition, results of operations, business properties, assets, liabilities,
or future prospects of ▇▇▇▇▇, or any affiliate shall not be published,
disclosed, or made accessible to any other person or entity at any time or
used in the business and for the benefit of Universal Filtration in each
case without the prior written consent of ▇▇▇▇▇.
(i) Public Statements. Before the present officers or directors of Universal
Filtration release any information concerning the Agreement, or any of the
other transactions contemplated by the Agreement which is intended for or
may result in public dissemination thereof, they shall cooperate with
▇▇▇▇▇, shall famish drafts of all documents or proposed oral statements to
▇▇▇▇▇ for comments, and shall not release any such information without the
written consent of ▇▇▇▇▇. Nothing contained herein shall prevent Universal
Filtration from releasing any information if required to do so by law.
(j) Material for Registration Statement. Universal Filtration shall furnish or
cause to be furnished, for inclusion in any proxy statement or post
effective registration statement required to be filed with the SEC covering
the Acquisition such information about Universal Filtration or Universal
Filtration's security holders as may be required or may be reasonably
requested by ▇▇▇▇▇ and shall continue to famish or cause to be furnished
such information for the purposes of supplementing any such proxy
statement, or amending the post-effective registration statement. Universal
Filtration represents and warrants that the information so supplied does
not now, and will not at any time contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not false or misleading.
(k) Indemnification. Universal Filtration agrees to indemnify and hold harmless
▇▇▇▇▇ and its officers, directors, employees, agents and counsel, and each
person who controls, controlled or will control Universal Filtration within
the meaning of Section 15 of the Securities Act of Section 20(a) of the
Securities Exchange Act and if the Acquisition is abandoned or terminated
except solely as a result of a breach of the Agreement by ▇▇▇▇▇ against any
and all losses, liabilities, claims, damages and expenses whatsoever,
including counsel's fees and expenses as and when incurred arising out of,
based upon or in connection with any untrue statement or alleged untrue
statement of a material fact relating to and supplied by Universal
Filtration contained in any post-effective registration statement, proxy
statement or any amendment or supplement thereto or any application or
other document or communication filed in any jurisdiction in order to
qualify the ▇▇▇▇▇ Shares to be issued in the Acquisition under the
"blue-sky," securities, or takeover laws thereof or filed with the SEC. The
foregoing agreement to indemnify shall be in addition to any liability
Universal Filtration may otherwise have, including liabilities arising
under the Agreement.
(l) Capitalization. Universal Filtration's capital structure consists of 200
shares of common stock without par value of which 200 shares are issued and
outstanding. Each outstanding share is validly authorized, validly issued,
fully paid and, nonassessable, has not been issued and is not owned or held
in violation of any preemptive right of shareholders.
V. REPRESENTATIONS AND WARRANTIES
4.01 CERTAIN REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇
▇▇▇▇▇ represents and warrants to Universal Filtration as follows:
(a) Organization and Qualification. ▇▇▇▇▇ is validly existing and in good
standing and has authority to own, lease, license and use its properties
and assets and to carry on the business in which it is now engaged and will
continue to be duly qualified.
(b) Capitalization. ▇▇▇▇▇'▇ capital structure consists of 50,000,000 shares of
common stock $.001 par value per share of which 7,192,929 shares are issued
and outstanding. Each outstanding ▇▇▇▇▇ Share is validly authorized,
validly issued, fully paid and, nonassessable, has not been issued and is
not owned or held in violation of any preemptive right of shareholders.
(c) Financial Condition. ▇▇▇▇▇ has delivered to Universal Filtration true and
correct copies of its financial statements. The financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved and are in accordance
with the books and records of ▇▇▇▇▇. Since the date of the financial
statements:
i. There has at no time been a material undisclosed adverse change
in the financial condition of ▇▇▇▇▇.
ii. ▇▇▇▇▇ has not declared, paid or effected any dividend or
liquidating or other distribution in respect of its shares of
common stock or any direct or indirect redemption, purchase, or
other acquisition of any ▇▇▇▇▇ Shares.
iii. The operations and business of ▇▇▇▇▇ have been conducted in all
respects only in the ordinary course.
iv. ▇▇▇▇▇ has not suffered an extraordinary loss not disclosed in its
financial statements (whether or not covered by insurance) or
waived any right of substantial value.
There is no fact known to ▇▇▇▇▇ which materially adversely affects or in
the future (as far as ▇▇▇▇▇ can foresee) may materially adversely affect
the financial condition, results of operations, business, properties,
assets, liabilities, or future prospects of ▇▇▇▇▇.
(d) Tax and Other Liabilities. ▇▇▇▇▇ has no undisclosed liability of any
nature, accrued or contingent, including without limitation liabilities for
federal, state or local taxes and liabilities.
(e) Litigation and Claims. There is no undisclosed litigation, arbitration,
claim, governmental or other proceeding (formal or informal) or
investigation pending, threatened or in prospect (or any basis therefor
known to ▇▇▇▇▇) with respect to ▇▇▇▇▇ or its business or assets.
(f) Properties. ▇▇▇▇▇ has title to or has leased the real and personal property
as set forth in the financial statements.
(g) Patents, Trademarks, Etc. ▇▇▇▇▇'▇ ownership or patents, trademarks or any
other intellectual property is as listed on its financial statements.
(h) Authority to Enter and Perform the Agreement. ▇▇▇▇▇ has all requisite power
and authority to execute, deliver and perform the Agreement. All necessary
corporate proceedings of ▇▇▇▇▇ have been duly taken to authorize the
execution, delivery and performance of the Agreement by ▇▇▇▇▇, other than
approval of the holders of ▇▇▇▇▇ Shares. The Agreement constitutes the
legal, valid and binding obligation of ▇▇▇▇▇ and is enforceable as to it in
accordance with its terms and no consent, authorization, approval, order,
license, certificate or permit of or from, or declaration or filing with
any federal, state, local or other government authority or any court or
other tribunal is required by ▇▇▇▇▇.
4.02 Certain Representations and Warranties of Universal Filtration
Universal Filtration represents and warrants to ▇▇▇▇▇ as follows:
(a) Organization and Qualification. Universal Filtration has no subsidiaries.
Universal Filtration is a corporation duly organized, validly existing and
in good standing under the laws of The State of New York with all requisite
power and authority and all necessary consents, authorization, approvals,
orders, licenses, certificates and permits of and from, and declarations
and filings with, all federal, state, local and other governmental
authorities to own, lease, license and use its properties and assets and to
carry on the business in which it is now engaged and the business in which
it contemplates engaging. Universal Filtration is duly qualified to
transact the business in which it is engaged and is in good standing as a
foreign corporation in every jurisdiction in which its ownership, leasing,
licensing, or use of property or assets or the conduct of its business
makes such qualification necessary.
(b) Capitalization. Each of the outstanding Universal Filtration Shares is
validly authorized, validly issued, fully paid and, nonassessable, has not
been issued and is not owned or held in violation of any preemptive right
of shareholders. The names of stockholders and the number of shares held by
each are listed on Attachment "C."
(c) Financial Condition. Universal Filtration has delivered to ▇▇▇▇▇ true and
correct copies of its financial statements for the years 1994 and 1995 and
comparative financial statements for the six months ended June 30, 1996 and
a list of all receivables and payables as of June 30, 1995, the dates on
which they arose. Since the date- of the financial statements:
i. -There has at no time been a material adverse change in the
financial condition of Universal Filtration.
ii. Universal Filtration has not authorized, declared, paid or
effected any dividend or liquidating or other distribution in
respect of its shares of common stock or any direct or indirect
redemption, purchase, or other acquisition of any Universal
Filtration shares of common stock. All accrued but unpaid
dividends have been waived by the Universal Filtration
shareholders entitled to receive such dividends in connection
with the Agreement.
iii. Universal Filtration has not suffered an extraordinary loss
(whether or not covered by insurance) or waived any right of
substantial value.
There is no fact known to Universal Filtration which materially
adversely affects the financial condition, results of operations,
business, properties, assets, liabilities, or future prospects of
Universal Filtration.
(d) Tax and Other Liabilities. Universal Filtration has no undisclosed
liability of any nature, accrued or contingent, including without
limitation liabilities for federal, state or local taxes and liabilities to
customers or suppliers, other than the following:
i. Liabilities for which full provision has been made on the
financial statements of Universal Filtration
ii. Other liabilities arising since the last Universal Filtration
financial statement in the ordinary course of business.
Without limiting the generality of the foregoing, the amounts set up
as provision for taxes on the last Universal Filtration financial
statement are sufficient for all accrued and unpaid taxes of Universal
Filtration.
(e) Litigation and Claims. There is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal) or investigation
pending, threatened or in prospect which adversely impact Universal
Filtration or its business or assets.
(f) Properties. Universal Filtration has good and marketable title to all
property and assets used in its business or owned by it, as listed on its
financial statements. The real and other properties and assets (including
intangibles) leased or licensed by Universal Filtration constitute all such
properties and assets which are necessary to the business of Universal
Filtration as presently conducted.
(g) Contracts and Other Instruments. Universal Filtration has made available to
▇▇▇▇▇ through the financial statements or otherwise in writing, all
contracts, agreements, leases, instruments, licenses, arrangements or
understandings with respect to Universal Filtration, listed on its
financial statements and otherwise. Universal Filtration is not a party nor
is it bound by any contract, agreement, instrument, lease, license,
arrangement, or understanding which may, in the future, have a material
adverse effect on the financial condition, results of operations, business,
properties, assets, liabilities or future prospects of Universal
Filtration.
(h) Patents, Trademarks, Etc. Universal Filtration's ownership of patents,
trademarks or any other intellectual property (if any) is listed on its
financial statements.
(i) Authority to Enter into and Perform the Agreement. Universal Filtration has
all requisite power and authority to execute, deliver and perform the
Agreement. All necessary corporate proceedings of Universal Filtration have
been duly taken to authorize the execution, delivery and performance of the
Agreement by Universal Filtration, other than approval of the holders of
Universal Filtration Common Stock. The Agreement constitutes the legal,
valid and binding obligation of Universal Filtration and is enforceable as
to it in accordance with its terms and no consent, authorization, approval,
order, license, certificate or permit of or from, or declaration or filing
with any federal, state, local or other government authority or any court
or other tribunal is required by Universal Filtration.
V. ABANDONMENT AND TERMINATION
5.01 Right of Universal Filtration to Abandon.
Universal Filtration's Board of Directors shall have the right to abandon or
terminate the Acquisition if any of the following shall not be true.
(a) Accuracy of Representations and Compliance with Conditions. All
representations and warranties of ▇▇▇▇▇ contained in the Agreement shall be
accurate regardless of knowledge or lack thereof on the part of ▇▇▇▇▇ or
changes beyond its control; ▇▇▇▇▇ shall have performed and complied with
all covenants and agreements and satisfied all conditions required to be
performed and complied with by it by the Agreement; and Universal
Filtration shall have received a certificate executed by the chief
executive officer and the chief financial officer of ▇▇▇▇▇ dated this date
to that effect.
(b) Opinion of ▇▇▇▇▇'▇ Counsel. Universal Filtration shall have received a
letter of ▇▇▇▇▇'▇ Counsel, in form and substance satisfactory to Universal
Filtration and its counsel, to the effect that:
▇. ▇▇▇▇▇ is an Idaho corporation validly existing and in good standing
with all requisite corporate power and authority to own, lease,
license and use its properties and assets and to carry on the business
in which it is now engaged;
ii. ▇▇▇▇▇ is and will be duly qualified to transact the business in which
it is engaged and is not required to register to do business in any
other jurisdiction;
iii. The authorized and outstanding capital stock of ▇▇▇▇▇ is as set forth
in the Agreement and all the outstanding shares of the capital stock
of ▇▇▇▇▇ are validly authorized, validly issued, fully paid and
nonassessable;
iv. All necessary corporate proceedings of ▇▇▇▇▇ have been duly taken to
authorize the execution, delivery and performance of the Agreement by
▇▇▇▇▇;
▇. ▇▇▇▇▇ has all requisite corporate power and authority to execute,
deliver and perform the Agreement and the Agreement has been duly
authorized, executed and delivered by ▇▇▇▇▇, constitutes the legal,
valid and binding obligation of ▇▇▇▇▇, and (subject to applicable
bankruptcy, insolvency and other laws affecting the enforceability of
creditors' rights generally) is enforceable as to ▇▇▇▇▇ in accordance
with its terms;
vi. The execution, delivery and performance of the Agreement by ▇▇▇▇▇ will
not violate or result in a breach of any term of ▇▇▇▇▇'▇ certificate
of incorporation or of its by-laws or violate, result in a breach of,
conflict with, or (with or without the giving of notice or the passage
of time or both) entitle any party to terminate or call a default
under, entitle any party to rights or privileges that did not exist
immediately before the Agreement was executed under, or create any
obligation on the part of ▇▇▇▇▇ under the terms of any agreement that
did not exist immediately before the Agreement was executed;
vii. After reasonable investigation, Counsel has no actual knowledge of any
consent, authorization, approval, order, license, certificate or
permit of or from or declaration or filing with any federal, state,
local or other governmental authority or any court or other tribunal
which is required of ▇▇▇▇▇ for the execution, delivery or performance
of the Agreement by ▇▇▇▇▇.
viii. After reasonable investigation, Counsel has no actual knowledge of
any litigation, arbitration, government or other proceeding (formal or
informal over and above the disclosure contained in the financial
statements), or investigation pending or threatened with respect to
▇▇▇▇▇ or any of its businesses, properties or assets than can
reasonably be expected to result in any materially adverse change in
the financial condition, results of operations, business, properties,
assets, liabilities or future prospects of ▇▇▇▇▇ or seeks to prohibit
or otherwise challenge the Agreement or the consummation of the
Acquisition or any of the other transactions contemplated hereby or to
obtain substantial damages with respect thereto, except as disclosed
in the Agreement.
ix. The persons named in such opinion as affiliates are, to the best of
Counsels knowledge, the only persons who may reasonably be deemed to
be affiliates of ▇▇▇▇▇ within the meaning of Rule 145 under the
Securities Act.
5.02 Right of ▇▇▇▇▇ to Abandon.
▇▇▇▇▇'▇ Board of Directors shall have the right to abandon or terminate the
Acquisition if any of the following shall not be true.
(a) Accuracy of Representations and Compliance with Conditions. All
representations and warranties of Universal Filtration contained in
the Agreement shall be accurate when made and Universal Filtration
shall have performed and complied with all covenants and agreements
and satisfied all conditions required to be performed and complied
with by it by the Agreement; and ▇▇▇▇▇ shall have received a
certificate executed by the chief executive officer and the chief
financial officer of Universal Filtration dated the date of the
Agreement to that effect.
(b) Certificate of the President of Universal Filtration. ▇▇▇▇▇ shall
receive a certificate of the President of Universal Filtration in form
and substance satisfactory to ▇▇▇▇▇ and its counsel, to the effect
that:
i. Universal Filtration is a corporation validly existing and in
good standing under the laws of the State of New York with all
requisite corporate power and authority to own, lease, license
and use its properties and assets and to carry on the business in
which it is now engaged.
ii. Universal Filtration is qualified to transact the business in
which it is engaged and is registered as a foreign corporation in
all jurisdictions in which it does business.
iii. The authorized and outstanding capital stock of Universal
Filtration is as set forth in the Agreement and all the
outstanding shares of the capital stock of Universal Filtration
are validly authorized, validly issued, fully paid and
nonassessable;
iv. All necessary corporate proceedings of Universal Filtration have
been duly taken to authorize the execution, delivery and
performance of the Agreement by Universal Filtration
v. Universal Filtration has all requisite corporate power and
authority to execute, deliver and perform the Agreement and the
Agreement has been duly authorized, executed and delivered by
Universal Filtration, constitutes the legal, valid and binding
obligation of Universal Filtration, and (subject to applicable
bankruptcy, insolvency and other laws affecting the
enforceability of creditors' rights generally) is enforceable as
to Universal Filtration in accordance with its terms;
vi. The execution, delivery and performance of the Agreement by
Universal Filtration will not violate or result in a breach of
any term of Universal Filtration' certificate of incorporation or
of its by-laws or violate, result in a breach of, conflict with,
or (with or without the giving of notice or the passage of time
or both) entitle any party to terminate or call a default under,
entitle any party to rights or privileges that did not exist
immediately before the Agreement was executed under, or create
any obligation on the part of Universal Filtration under the
terms of any agreement that did not exist immediately before the
Agreement was executed;
vii. He has no actual knowledge of any consent, authorization,
approval, order, license, certificate or permit of or from or
declaration or filing with any federal, state, local or other
governmental authority or any court or other tribunal which is
required of Universal Filtration for the execution, delivery or
performance of the Agreement by Universal Filtration.
viii. He has no actual knowledge of any litigation, arbitration,
government or other proceeding (formal or informal), or
investigation pending or threatened with respect to Universal
Filtration or any of its businesses, properties or assets than
can reasonably be expected to result in any materially adverse
change in the financial condition, results of operations,
business, properties, assets, liabilities or future prospects of
Universal Filtration or seeks to prohibit or otherwise challenge
the Agreement or the consummation of the Acquisition or any of
the- other transactions contemplated hereby or to obtain
substantial damages with respect thereto, except as disclosed in
the Agreement.
VI. MISCELLANEOUS.
6.01 Further Actions
At any time and from time to time, each Party agrees, at its expense, to take
such actions and to execute and deliver such documents as may be reasonably
necessary to effectuate the purposes of the Agreement.
6.02 Availability of Equitable Remedies
Since a breach of the provisions of the Agreement could not adequately be
compensated by money damages, either Party shall be entitled, in addition to any
other right or remedy available to it, to an injunction restraining such breach
or threatened breach and to specific performance of any such provision of the
Agreement, and, in either case, no bond or other security shall be required in
connection therewith, and the Parties hereby consent to the issuance of such an
injunction and to the ordering of specific performance.
6.03 Modification
The Agreement sets forth the entire understanding of the Parties with respect to
the subject matter hereof. The Agreement may be amended by a written instrument
executed by Universal Filtration and ▇▇▇▇▇ with the approval of their respective
Boards of Directors. A change in the number of shares issued or the number and
exercise price of options due to a stock split or recapitalization of ▇▇▇▇▇
ratably affecting all its stockholders and option holders will not be construed
as a modification of the Agreement.
6.04 Notices
Any notice or other communication required or permitted to be given hereunder
shall be in writing and shall be mailed by certified mail, return receipt
requested or overnight delivery or courier service or delivered in person or by
facsimile against receipt to the Party to whom it is to be given at the address
of such Party set forth in the preamble to the Agreement (or to such other
address (or facsimile telephone number) as the party shall have furnished in
writing to the other Party. Any notice shall be addressed to the attention of
the Corporate Secretary. Any notice or other communication given pursuant to the
paragraph shall be given at the time or certificate or comparable act thereof
except for a notice changing a party's address which will be deemed given at the
time or receipt thereof. Any notice given by other means than permitted by this
paragraph shall be deemed given at the time of receipt thereof.
6.05 Waiver
Any waiver by either Party of a breach of any provision of the Agreement shall
not operate as or be construed to be a waiver of any other breach of that
provision or of any breach of any other provision of the Agreement. The failure
of a Party to insist upon strict adherence to any term of the Agreement on one
or more occasions will not be considered a waiver or deprive that Party of the
right thereafter to insist upon strict adherence to that term or any other term
of the Agreement. Any waiver must be in writing and be authorized by a
resolution of the Board of Directors of the waiving Party.
6.06 Binding Effect
The provisions of the Agreement shall be binding upon and inure to the benefit
of Universal Filtration and ▇▇▇▇▇ and their respective successors and assigns
and shall inure to the benefit of either Universal Filtration or ▇▇▇▇▇
individually and his/her/its assigns, heirs and personal representatives, as the
case may be.
6.07 No Third Party Beneficiaries
The Agreement does not create, and shall not be construed as creating, any
rights enforceable
6.08 Separability
If any provision of the Agreement is invalid, illegal, or unenforceable, the
balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance, it shall nevertheless remain
applicable to all other persons and circumstances.
6.09 Headings
The headings in the Agreement are solely for convenience of reference and shall
be given no effect in the construction or interpretation of the Agreement.
6.10 Counterparts; Governing Law
The Agreement may be executed in any number of counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument. The Agreement shall be governed by and construed in accordance
with the laws of the State of New Jersey, without giving effect to conflict of
laws. Any action, suit or proceeding arising out of, based, on, or in connection
with the Agreement, the Acquisition, or the other transactions contemplated
hereby may be brought only in the United States District Court for New Jersey
and each Party covenants and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such action, suit, or proceeding, any claim that
it is not subject personally to the jurisdiction of such court, that its
property is exempt or immune from attachment or execution, that the action, suit
or proceeding is brought in an inconvenient forum, that the venue of the action,
suit, or proceeding is improper, or that the Agreement or the subject matter
hereof may not be enforced in or by such court.
IN WITNESS WHEREOF, the Agreement has been approved by resolution duly adopted
by the Board of Directors of each of the Constituent Corporations and has been
signed by duly authorized officers of each of the Constituent Corporations, all
as of the date first above written.
UNIVERSAL FILTRATION INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President
▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.