EXHIBIT 10.2 - ACQUISITION AGREEMENT OF ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
CORP.
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ACQUISITION AGREEMENT OF
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ CORP.
BY
INDUSTRIES, INC.
This agreement and plan of acquisition (the
"Agreement") dated October 25. 1996. by and between
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Corp., a New York corporation, the address
of which is ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ 1 1738,
("H/W"), and ▇▇▇▇▇ Industries, Inc.. an Idaho corporation,
the address of which is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇" or the "Acquiring Corporation") [H/W
and ▇▇▇▇▇ being herein sometimes called the "Parties" or
"Constituent Corporations"].
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 Auxe- board of directors shall
consist of three directors.
II. STATUS AND CONVERSION OF SECURITIES AND PROVISION FOR
ADDITIONAL CONSIDERATION
2.01 Shares of H/W
(a) H/W Common Stock. All the shares of the
common stock of H/W (being 200 Shares) ("H/W Shares") shall
be converted into and exchanged for 170,000 shares of common
stock, of ▇▇▇▇▇ ("▇▇▇▇▇ Shares" or "▇▇▇▇▇ Common Stock") to
be issued to the sole shareholder of H/W, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("▇▇▇▇▇▇") or his designee(s). ▇▇▇▇▇▇ and all designee(s) or
spouses of such designees(s) which receive ▇▇▇▇▇ Shares
pursuant to this paragraph agree that they will not enter
any of the businesses in which H/W is presently involved for
a period of three years in the "tri-state" area of New York,
New Jersey and Connecticut.
(b) Surrender and Exchange, of H/W 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 H/W Shares ("H/W
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 H/W Shares therefore represented by
such surrendered Old Certificates have been converted. There
are no dividends due to holders of H/W Shares. H/W shall
provide written instructions to ▇▇▇▇▇ indicating the number
of' ▇▇▇▇▇ Shares to be issued to ▇▇▇▇▇▇ and/or his
designee(s). 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 one-half the Current Market Price 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 H/W 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 thatShareholder.
(f) In the event. ▇▇▇▇▇▇, during the initial six
months after the ▇▇▇▇▇ Shares received pursuant to paragraph
201(b) become publicly tradable, sells such stock in
brokerage transactions at market for an average price less
than S 1.50 per share, ▇▇▇▇▇ will, at ▇▇▇▇▇▇'▇ option,
either transfer additional shares to ▇▇▇▇▇▇ so that the
average sales price of all his ▇▇▇▇▇ Shares equals $1.50 per
share or pay ▇▇▇▇▇▇ the difference between such average
sales price and S 1.50 in cash.
It is understood by the Parties that the closing of the
transactions contemplated herein shall take place
simultaneously with the execution of the Agreement.
2.02 Additional Consideration
▇▇▇▇▇ will assume and promptly pay the following
liabilities as of the date of the Agreement related to:
commission sales personnel not to exceed $37,000
accounts payable not to exceed $55,000 (of which the payment
of legal fees due ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ et al of $3,362.50 will
be paid simultaneously with the closing of the transactions
contemplated by the Agreement); payroll not to exceed
$5,500; and landlord not to exceed $5,900.
In the event ▇▇▇▇▇ pays liabilities of H/W which equal
these limits for any group of creditors for accounts payable
only, ▇▇▇▇▇▇ will assume any additional liabilities to that
group. ▇▇▇▇▇ will document all payments by statements and
canceled checks.
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 8,079,929 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 H/W free and full
access to the proper ties, books and records of ▇▇▇▇▇, has
permitted them to make extracts from and copies of
such books and records and has furnished H/W 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 H/W 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 barkers,
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
H/W, any affiliate or any customer or supplier of H/W
shall not be published, disclosed, or made accessible to any
other person or entity at any time in each case without the
prior consent of ▇▇▇▇▇▇ 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
or may result in public dissemination thereof, ▇▇▇▇▇, for a
period of six months from the date of the Agreement, shall
cooperate with ▇▇▇▇▇▇, shall furnish 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
▇▇▇▇▇ from releasing any information if required to do so by
federal or state securities law.
(h) Material for Registration Statement. ▇▇▇▇▇
represents that any future 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/or the
Securities Exchange Act of 1934 (the "Securities Exchange
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
furnish 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 H/W and its present officers, directors,
employees, agents and counsel and each person who controls
H. W within the meaning of Section 15 of the Securities Act
of Section 20(a) or the Securities Exchange Act and if the
Acquisition is abandoned or terminated, except solely as a
result of a breach of the Agreement by H/W and/or ▇▇▇▇▇▇,
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 H/W 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 H/W 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 H/W in
respect of the outstanding H/W Shares.
(c) Borrowing Money. H/W 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. H/W 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 H/W 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 H/W as ▇▇▇▇▇ from time to time has
requested. H/W will cause the independent certified public
accountants of H/W to make available to ▇▇▇▇▇ and its
independent certified public accountants all work
papers relating to H/W referred to herein.
(e) Conduct of Business. H/W has used reasonable
efforts to preserve the business operations of H/W 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 H/W and to preserve the good will to
others having business relations with it.
(f) Advice of Changes. H/W 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) Confidentialirv. H/W shall insure that all
confidential information which H/W 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 H/W in each case without the prior written
consent of ▇▇▇▇▇.
(h) Public Statements. Before the present
officers or ,directors of H/W 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 furnish 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 H/W
from releasing any information if required to do so by law.
(i) Material for Registration Statement. In the
event ▇▇▇▇▇ files a registration statement with the SEC,
▇▇▇▇▇▇ will provide such information relating to H/W as may
be required which he can obtain without unreasonable effort
or more than nominal cost.
(j) Indemnification. HAW agrees to indemnify
▇▇▇▇▇ and its officers, directors, employees, agents and
counsel 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 representations which induced ▇▇▇▇▇ to
enter into the Agreement.
(k) Capitalization. H/W's capital structure
consists of 1,000 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.
IV. REPRESENTATIONS AND WARRANTIES
4.01 Certain Representations and Warranties of ▇▇▇▇▇
▇▇▇▇▇ represents and warrants to H/W 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 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 8,092,929 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 H/W
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) Patent,. Trademarks, Etc. ▇▇▇▇▇'▇ ownership or
patents. trademarks or any other intellectual property is as
listed on its financial statements.
(h) Authoritv 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 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 ▇▇▇▇▇.
(i) ▇▇▇▇▇ warrants that in the event it files a
registration statement with the SEC, it will include on a
"piggy-back" basis the ▇▇▇▇▇ Shares issued to ▇▇▇▇▇▇ and/or
designee(s) pursuant to Paragraph 201 (a) of the Agreement
at no cost to ▇▇▇▇▇▇ except underwriter's commissions, if
any.
4.02 Certain Representations and Warranties of H/VI/
H/W represents and warrants to ▇▇▇▇▇ as follows:
(a) Organization and Qualification. H/W has no
subsidiaries. H/W 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. H/W 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 H/W
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. H/W has delivered to
▇▇▇▇▇ true and correct copies of its unaudited financial
statements for the years ended December 31, 1994 and 1995
and for the eight months ended August 31, 1996 and a list of
all receivables and payables as of August 31, 1996 and a
schedule of inventory as of that date. Since the date of the
financial statements:
i. There has at no time been a material adverse
change in the financial condition of H/W.
ii. H/W 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
H/W shares of common stock. All accrued but unpaid dividends
have been waived by the H/W shareholders entitled to receive
such dividends in connection with the Agreement.
iii. H/W 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 H/W which materially
adversely affects the financial condition, results of
operations, business, properties, assets, liabilities, or
future prospects of H/W.
(d) Tax and Other Liabilities. H/W 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 H/W
ii. Other liabilities arising since the last
H/W 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 H/W
financial statement are sufficient for all accrued and
unpaid taxes of H/W.
(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 H/W or its business or
assets.
(f) Properties. H/W 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 H/W constitute all such properties
and assets which are necessary to the business of H/W as
presently conducted.
(g) Contracts and Other Instruments. H/W has made
available to ▇▇▇▇▇ through the financial statements or
otherwise in writing, all contracts, agreements, leases,
instruments, licenses, arrangements or understandings with
respect to H/W, listed on its financial statements
and otherwise. H/W 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 H/W.
(h) Patents, Trademarks, Etc. H/W'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. H/W has all requisite power and authority to
execute, deliver and perform the Agreement. All necessary
corporate proceedings of H/W have been duly taken to
authorize the execution, delivery and performance of the
Agreement by H/W, other than approval of the holders of H/W
Common Stock. The Agreement constitutes the legal, valid and
binding obligation of H/W 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 H/W.
V. ABANDONMENT AND TERMINATION
5.01 Right of H/W to Abandon.
H/W'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 H/W 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. H/W shall have
received a letter of ▇▇▇▇▇'▇ Counsel, in form and substance
satisfactory to H/W 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 affect-
ing 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.
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 H/W
contained in the Agreement shall be accurate when made and
H/W 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
H/W dated the date of the Agreement to that effect.
(b) Certificate of the President of H/▇. ▇▇▇▇▇
shall receive a certificate of the Chairman of the Board and
Sole Stockholder of H/W in' form and substance satisfactory
to ▇▇▇▇▇ and its counsel, to the effect that:
i. H/W 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. H/W 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 H/W is as set forth in the Agreement and all the
outstanding shares of the capital stock of H/W are validly
authorized, validly issued, fully paid and nonassessable;
iv. All necessary corporate proceedings of H/W have
been duly taken to authorize the execution, delivery and
performance of the Agreement by H/W;
v. H/W 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 H/W, constitutes the legal, valid and
binding obligation of H/W, and (subject to applicable
bankruptcy, insolvency and other laws affecting the
enforceability of creditors' rights generally) is
enforceable as to H/W in accordance with its terms;
vi. The execution, delivery and performance of the
Agreement by H/W will not violate or result in a breach of
any term of H/W's 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 H/W 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 H/W for the execution,
delivery or performance of the Agreement by WW.
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 H/W 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 H/W 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 H/W 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.