EXHIBIT 10.7
EXCHANGE AGREEMENT
Between
Unicorp, Inc.
and
Affiliated Holdings, Inc.
Dated July 29, 2004
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement") is
entered into as of this 29th day of July 2004 by and between UNICORP, Inc., a
Nevada corporation (hereinafter referred to as "Unicorp"), Affiliated Holdings,
Inc., a Texas corporation (hereinafter referred to as "Affiliated Holdings"),
and all of the shareholders of Affiliated Holdings ("Shareholders") upon the
following premises:
Premises
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WHEREAS, Unicorp is a publicly held corporation organized under the laws of
the State of Nevada;
WHEREAS, Affiliated Holdings is a corporation organized under the laws of
the State of Texas;
WHEREAS, management of the constituent corporations have determined that it
is in the best interest of the parties that Unicorp acquire 100% of the issued
and outstanding securities of Affiliated Holdings in exchange for the issuance
of certain shares of Unicorp to the Shareholders (the "Exchange") on the terms
described herein; and
WHEREAS, Unicorp and the Shareholders desire to set forth the terms of the
Exchange, which is intended to constitute a tax-free reorganization pursuant to
the provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986.
Agreement
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NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF AFFILIATED HOLDINGS, INC.
As an inducement to, and to obtain the reliance of Unicorp, except as set
forth on the Affiliated Holdings Schedules (as hereinafter defined), Affiliated
Holdings represents and warrants as follows:
Section 1.01 Organization. Affiliated Holdings is a corporation duly
------------
organized, validly existing, and in good standing under the laws of the State of
Texas and has the corporate power and is duly authorized, qualified, franchised,
and licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, including
qualification to do business as a foreign corporation in the states or countries
in which the character and location of the assets owned by it or the nature of
the business transacted by it requires qualification, except where failure to be
so qualified would not have a material adverse effect on its business. Complete
and correct Articles of Incorporation and Bylaws as in effect on the date
hereof, have been delivered to Unicorp. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, violate any provision of Affiliated Holdings' Articles of
Incorporation or Bylaws. Affiliated Holdings has taken all actions required by
law, its Articles of Incorporation or Bylaws, or otherwise to authorize the
execution and delivery of this Agreement. Affiliated Holdings has full power,
authority, and legal right and has taken all action required by law, its
Articles of Incorporation and Bylaws and otherwise to consummate the
transactions herein contemplated.
Section 1.02 Capitalization. The authorized capitalization of Affiliated
--------------
Holdings consists of 1,000 shares of common stock, of which 1,000 shares are
currently issued and outstanding. All issued and outstanding shares are legally
issued, fully paid, and non-assessable and not issued in violation of the
preemptive or other rights of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. Affiliated
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Holdings does not have any predecessor corporation(s) or subsidiaries, and does
not own, beneficially or of record, any shares of any other corporation.
Section 1.04 Financial Statements.
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(a) All such financial statements have been prepared in accordance
with generally accepted accounting principles. The Affiliated Holdings
balance sheets present a true and fair view as of the dates of such balance
sheets of the financial condition of Affiliated Holdings. Affiliated
Holdingsdid not have, as of the dates of such balance sheets, except as and
to the extent reflected or reserved against therein, any liabilities or
obligations (absolute or contingent) which should be reflected in the
balance sheets or the notes thereto, prepared in accordance with generally
accepted accounting principles, and all assets reflected therein are
properly reported and present fairly the value of the assets of Affiliated
Holdings in accordance with generally accepted accounting principles.
(b) Affiliated Holdings has no liabilities with respect to the
payment of any federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not yet
due and payable.
(c) Affiliated Holdings has filed all state, federal or local income
and/or franchise tax returns required to be filed by it from inception to
the date hereof. Each of such income tax returns reflects the taxes due for
the period covered thereby, except for amounts which, in the aggregate, are
immaterial.
(d) The books and records, financial and otherwise, of Affiliated
Holdings are in all material respects complete and correct and have been
maintained in accordance with good business and accounting practices.
(e) All of Affiliated Holdings' assets are reflected on its financial
statements, and, except as set forth in the Affiliated Holdings Schedules
or the financial statements of Affiliated Holdings or the notes thereto,
Affiliated Holdings has no material liabilities, direct or indirect,
matured or unmatured, contingent or otherwise.
Section 1.05 Information. The information concerning Affiliated Holdings
-----------
set forth in this Agreement is complete and accurate in all material respects
and does not contain any untrue statement of a material fact or omit to state a
material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. In addition,
Affiliated Holdings has fully disclosed in writing to Unicorp all information
relating to matters involving Affiliated Holdings or its assets or its present
or past operations or activities which (i) indicated or may indicate, in the
aggregate, the existence of a greater than $50,000 liability of Affiliated
Holdings.
Section 1.06 Options or Warrants. There are no existing options,
---------------------
warrants, calls, or commitments of any character relating to the authorized and
unissued Affiliated Holdings common stock.
Section 1.07 Absence of Certain Changes or Events. Except as set forth
-------------------------------------
in this Agreement;
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of Affiliated
Holdings or (ii) any damage, destruction, or loss to Affiliated Holdings
(whether or not covered by insurance) materially and adversely affecting
the business, operations, properties, assets, or condition of Affiliated
Holdings ;
(b) Affiliated Holdings has not (i) amended its Articles of
Incorporation or Bylaws; (ii) declared or made, or agreed to declare or
make, any payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to purchase
or redeem, any of its capital stock; (iii) waived any rights of value which
in the aggregate are outside of the ordinary course of business or material
considering the business of Affiliated Holdings; (iv) made any material
change in its method of management, operation or accounting; (v) entered
into any other material transaction other than sales in the ordinary course
of its business; (vi) made any accrual or arrangement for payment of
bonuses or special compensation of any kind or any severance or termination
pay to any present or former officer or employee; (vii) increased the rate
of compensation payable or to become payable by it to any of its officers
or directors or any of its salaried employees
whose monthly compensation exceeds $5,000; or (viii) made any increase in
any profit sharing, bonus, deferred compensation, insurance, pension,
retirement, or other employee benefit plan, payment, or arrangement made
to, for, or with its officers, directors, or employees other than in the
ordinary course of business;
(c) Affiliated Holdings has not (i) borrowed or agreed to borrow any
funds or incurred, or become subject to, any material obligation or
liability (absolute or contingent) except as disclosed herein and except
liabilities incurred in the ordinary course of business; (ii) paid or
agreed to pay any material obligations or liability (absolute or
contingent) other than current liabilities reflected in or shown on the
most recent Affiliated Holdings balance sheet, and current liabilities
incurred since that date in the ordinary course of business and
professional and other fees and expenses in connection with the preparation
of this Agreement and the consummation of the transactions contemplated
hereby; (iii) sold or transferred, or agreed to sell or transfer, any of
its assets, properties, or rights (except assets, properties, or rights not
used or useful in its business which, in the aggregate have a value of less
than $10,000), or canceled, or agreed to cancel, any debts or claims
(except debts or claims which in the aggregate are of a value of less than
$10,000); (iv) made or permitted any amendment or termination of any
contract, agreement, or license to which it is a party if such amendment or
termination is material, considering the business of Affiliated Holdings;
or (v) issued, delivered, or agreed to issue or deliver any stock, bonds or
other corporate securities including debentures (whether authorized and
unissued or held as treasury stock); and
(d) to the best knowledge of Affiliated Holdings, Affiliated Holdings
has not become subject to any law or regulation which materially and
adversely affects, or in the future may adversely affect the business,
operations, properties, assets, or condition of Affiliated Holdings.
Section 1.08 Title and Related Matters. Affiliated Holdings has good and
-------------------------
marketable title to all of its properties, inventory, interests in properties,
and assets, real and personal, which are reflected in the most recent Affiliated
Holdings balance sheet or acquired after that date (except properties,
inventory, interests in properties, and assets sold or otherwise disposed of
since such date in the ordinary course of business) free and clear of all liens,
pledges, charges, or encumbrances except (a) statutory liens or claims not yet
delinquent and (b) such imperfections of title and easements as do not and will
not materially detract from or interfere with the present or proposed use of the
properties subject thereto or affected thereby or otherwise materially impair
present business operations on such properties; Affiliated Holdings owns, free
and clear of any liens, claims, encumbrances, royalty interests, or other
restrictions or limitations of any nature whatsoever, any and all products it is
currently manufacturing, including the underlying technology and data, and all
procedures, techniques, marketing plans, business plans, methods of management,
or other information utilized in connection with Affiliated Holdings' business;
no third party has any right to, and Affiliated Holdings has not received any
notice of infringement of or conflict with asserted rights of others with
respect to any product, technology, data, trade secrets, know-how, propriety
techniques, trademarks, service marks, trade names, or copyrights which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse effect on the business,
operations, financial condition, income, or business prospects of Affiliated
Holdings or any material portion of its properties, assets, or rights.
Section 1.09 Litigation and Proceedings. There are no actions, suits,
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proceedings, or investigations pending or, to the knowledge of Affiliated
Holdings after reasonable investigation, threatened by or against Affiliated
Holdings or affecting Affiliated Holdings or its properties, at law or in
equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind. Affiliated Holdings
does not have any knowledge of any material default on its part with respect to
any judgment, order, injunction, decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
Section 1.10 Contracts.
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(a) There are no "material" contracts, agreements, franchises,
license agreements, debt instruments or other commitments to which
Affiliated Holdings is a party or by which it or any of its assets,
products, technology, or properties are bound other than those incurred in
the ordinary course of business (as used in this Agreement, a "material"
contract, agreement, franchise, license agreement, debt instrument or
commitment is one which (i) will remain in effect for more than six (6)
3
months after the date of this Agreement or (ii) involves aggregate
obligations of at least one-hundred thousand dollars ($100,000));
(b) All material contracts, agreements, franchises, license
agreements, and other commitments to which Affiliated Holdings is a party
or by which its properties are bound and which are material to the
operations of Affiliated Holdings taken as a whole are valid and
enforceable by Affiliated Holdings in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally;
(c) Affiliated Holdings is not a party to or bound by, and the
properties of Affiliated Holdings are not subject to any material contract,
agreement, other commitment or instrument; any charter or other corporate
restriction; or any judgment, order, writ, injunction, decree, or award
which materially and adversely affects, the business operations,
properties, assets, or condition of Affiliated Holdings; and
(d) Affiliated Holdings is not a party to any oral or written (i)
contract for the employment of any officer or employee which is not
terminable on 30 days, or less notice; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension benefit or retirement
plan, (iii) material agreement, contract, or indenture relating to the
borrowing of money, (iv) guaranty of any obligation, other than one on
which Affiliated Holdings is a primary obligor, for the borrowing of money
or otherwise, excluding endorsements made for collection and other
guaranties of obligations which, in the aggregate do not exceed more than
one year or providing for payments in excess of $50,000 in the aggregate;
(vi) collective bargaining agreement; or (vii) agreement with any present
or former (on or after Jan. 1, 2002) officer or director of Affiliated
Holdings.
Section 1.11 Material Contract Defaults. Affiliated Holdings is not in
---------------------------
default in any material respect under the terms of any outstanding material
contract, agreement, lease, or other commitment and there is no event of default
in any material respect under any such material contract, agreement, lease, or
other commitment in respect of which Affiliated Holdings has not taken adequate
steps to prevent such a default from occurring.
Section 1.12 No Conflict With Other Instruments. The execution of this
------------------------------------
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which Affiliated Holdings is a party or to which any
of its properties or operations are subject.
Section 1.13 Governmental Authorizations. Affiliated Holdings has all
----------------------------
licenses, franchises, permits, and other governmental authorizations that are
legally required to enable it to conduct its business in all material respects
as conducted on the date hereof. Except for compliance with federal and state
securities and corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by Affiliated Holdings of this Agreement and the
consummation by Affiliated Holdings of the transactions contemplated hereby.
Section 1.14 Compliance With Laws and Regulations. To the best of its
---------------------------------------
knowledge Affiliated Holdings has complied with all applicable statutes and
regulations of any federal, state, or other governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets, or condition of
Affiliated Holdings or except to the extent that noncompliance would not result
in the occurrence of any material liability for Affiliated Holdings.
Section 1.15 Insurance. All of the properties of Affiliated Holdings are
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insured for an amount deemed reasonable.
Section 1.16 Approval of Agreement. The board of directors of Affiliated
---------------------
Holdings has authorized the execution and delivery of this Agreement by
Affiliated Holdings and has approved this Agreement and the transactions
contemplated hereby.
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Section 1.17 Valid Obligation. This Agreement and all agreements and
-----------------
other documents executed by Affiliated Holdings in connection herewith
constitute the valid and binding obligation of Affiliated Holdings, enforceable
in accordance with its or their terms, except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefor may be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF UNICORP
As an inducement to, and to obtain the reliance of Affiliated Holdings and
the Affiliated Holdings Shareholders, except as set forth in the Unicorp
Schedules (as hereinafter defined), Unicorp represents and warrants as follows:
Section 2.01 Organization. Unicorp is a corporation duly organized,
------------
validly existing, and in good standing under the laws of the State of Nevada and
has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets, to carry on its
business in all material respects as it is now being conducted, and except where
failure to be so qualified would not have a material adverse effect on its
business, there is no jurisdiction in which it is not qualified in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, violate any provision of Unicorp's certificate of incorporation or
bylaws. Unicorp has taken all action required by law, its certificate of
incorporation, its bylaws, or otherwise to authorize the execution and delivery
of this Agreement, and Unicorp has full power, authority, and legal right and
has taken all action required by law, its certificate of incorporation, bylaws,
or otherwise to consummate the transactions herein contemplated.
Section 2.02 Capitalization. Unicorp's authorized capitalization
--------------
consists of 1,500,000,000 shares of common stock, par value $.001 of which
596,469 shares are issued and outstanding. No shares of preferred stock or any
other claim of common stock are authorized. All issued and outstanding shares
are legally issued, fully paid, and non-assessable and not issued in violation
of the preemptive or other rights of any person.
Section 2.03 Subsidiaries and Predecessor Corporations. Unicorp does not
-----------------------------------------
have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation.
Section 2.04 Securities Filings; Financial Statements.
-------------------------------------------
(a) For at least the past twenty-four months Unicorp has timely filed
all forms, reports and documents required to be filed with the Securities
and Exchange Commission, and has heretofore delivered to Affiliated
Holdings, in the form filed with the Commission, (i) all quarterly and
annual reports on Forms 10-QSB and 10-KSB filed since December 31, 2001
(ii) all other reports filed by Unicorp with the Securities and Exchange
Commission since December 31, 2001, (collectively, the "SEC Reports") and
(iii) all comment letters from the Securities and Exchange Commission with
respect to the SEC Reports. The SEC Reports (i) were prepared in accordance
with the requirements of the Securities Exchange Act of 1934 or the
Securities Act of 1933, as appropriate, and (ii) did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
as of the date hereof none of its SEC Reports need to be amended to correct
any prior disclosure in order for prior SEC Reports to not contain any
untrue statement of material fact or omission to state any material fact.
Unicorp is current in all of its obligations under federal securities laws.
(b) All such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved. The Unicorp balance sheets present fairly
as of their respective dates the financial condition of Unicorp. As of the
date of such balance sheets, except as and to the extent reflected or
reserved against therein, Unicorp had no liabilities or obligations
(absolute or contingent) which should be reflected in the
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balance sheets or the notes thereto prepared in accordance with generally
accepted accounting principles, and all assets reflected therein are
properly reported and present fairly the value of the assets of Unicorp, in
accordance with generally accepted accounting principles. The statements of
operations, stockholders' equity and cash flows reflect fairly the
information required to be set forth therein by generally accepted
accounting principles.
(c) Unicorp has no liabilities with respect to the payment of any
federal, state, county, local or other taxes (including any deficiencies,
interest or penalties), except for taxes accrued but not yet due and
payable.
(d) Unicorp has timely filed all state, federal or local income
and/or franchise tax returns required to be filed by it from inception to
the date hereof. Each of such income tax returns reflects the taxes due for
the period covered thereby, except for amounts which, in the aggregate, are
immaterial.
(e) The books and records, financial and otherwise, of Unicorp are in
all material aspects complete and correct and have been maintained in
accordance with good business and accounting practices.
(f) All of Unicorp's assets are reflected on its financial
statements, and, except as set forth in the Unicorp Schedules or the
financial statements of Unicorp or the notes thereto, Unicorp has no
material liabilities, direct or indirect, matured or unmatured, contingent
or otherwise.
Section 2.05 Information. The information concerning Unicorp set forth
-----------
in this Agreement and the Unicorp Schedules is complete and accurate in all
material respects and does not contain any untrue statements of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading. In addition,
Unicorp has fully disclosed in writing to Affiliated Holdings (through this
Agreement or the Unicorp Schedules) all information relating to matters
involving Unicorp or its assets or its present or past operations or activities
which (i) indicated or may indicate, in the aggregate, the existence of a
greater than $25,000 liability of Unicorp.
Section 2.06 Options or Warrants. There are no existing options,
---------------------
warrants, calls, or commitments of any character relating to any issued and
outstanding capital stock or to any authorized and unissued capital stock of
Unicorp.
Section 2.07 Absence of Certain Changes or Events. Since the date of the
------------------------------------
most recent Unicorp balance sheet:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets or condition of Unicorp or (ii)
any damage, destruction or loss to Unicorp (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets or condition of Unicorp;
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(b) Unicorp has not (i) amended its certificate of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the
aggregate are outside of the ordinary course of business or material
considering the business of Unicorp; (iv) made any material change in its
method of management, operation, or accounting; (v) entered into any
transactions or agreements other than in the ordinary course of business;
(vi) made any accrual or arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination pay to any present
or former officer or employee; (vii) increased the rate of compensation
payable or to become payable by it to any of its officers or directors or
any of its salaried employees whose monthly compensation exceed $1,000; or
(viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee benefit
plan, payment, or arrangement, made to, for or with its officers,
directors, or employees;
(c) Unicorp has not (i) granted or agreed to grant any options,
warrants, or other rights for its stock, bonds, or other corporate
securities calling for the issuance thereof or with respect to outstanding
common stock; (ii) borrowed or agreed to borrow any funds or incurred, or
become subject to, any material obligation or liability (absolute or
contingent) except liabilities incurred in the ordinary course of business;
(iii) paid or agreed to pay any material obligations or liabilities
(absolute or contingent) other than current liabilities reflected in or
shown on the most recent Unicorp balance sheet and current liabilities
incurred since that date in the ordinary course of business and
professional and other fees and expenses in connection with the preparation
of this Agreement and the consummation of the transaction contemplated
hereby; (iv) sold or transferred, or agreed to sell or transfer, any of its
assets, properties, or rights (except assets, properties, or rights not
used or useful in its business which, in the aggregate have a value of less
than $1000), or canceled, or agreed to cancel, any debts or claims (except
debts or claims which in the aggregate are of a value less than $1000); (v)
made or permitted any amendment or termination of any contract, agreement,
or license to which it is a party if such amendment or termination is
material, considering the business of Unicorp; or (vi) issued, delivered or
agreed to issue or deliver, any stock, bonds, or other corporate securities
including debentures (whether authorized and unissued or held as treasury
stock), except in connection with this Agreement; and
(d) to the best knowledge of Unicorp, it has not become subject to
any law or regulation which materially and adversely affects, or in the
future, may adversely affect, the business, operations, properties, assets
or condition of Unicorp.
Section 2.08 Title and Related Matters. Unicorp has good and marketable
-------------------------
title to all of its properties, inventory, interest in properties, and assets,
real and personal, which are reflected in the most recent Unicorp balance sheet
or acquired after that date (except properties, inventory, interest in
properties, and assets sold or otherwise disposed of since such date in the
ordinary course of business), free and clear of all liens, pledges, charges, or
encumbrances except (a) statutory liens or claims not yet delinquent; (b) such
imperfections of title and easements as do not and will not materially detract
from or interfere with the present or proposed use of the properties subject
thereto or affected thereby or otherwise materially impair present business
operations on such properties; and (c) as described in the Unicorp Schedules.
Except as set forth in the Unicorp Schedules, Unicorp owns, free and clear of
any liens, claims, encumbrances, royalty interests, or other restrictions or
limitations of any nature whatsoever, any and all products it is currently
manufacturing, including the underlying technology and data, and all procedures,
techniques, marketing plans, business plans, methods of management, or other
information utilized in connection with Unicorp's business. Except as set forth
in the Unicorp Schedules, no third party has any right to, and Unicorp has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
propriety techniques, trademarks, service marks, trade names, or copyrights
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse effect on the
business, operations, financial condition, income, or business prospects of
Unicorp or any material portion of its properties, assets, or rights.
Section 2.09 Litigation and Proceedings. There are no actions, SEC
----------------------------
inquires (formal or informal), suits, proceedings or investigations pending or,
to the knowledge Unicorp after reasonable investigation, threatened by or
against Unicorp or affecting Unicorp or its properties, at law or in equity,
before any court or other governmental agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind.
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Unicorp has no knowledge of any default on its part with respect to any
judgement, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator, or governmental agency or instrumentality or any circumstance
which after reasonable investigation would result in the discovery of such
default.
Section 2.10 Contracts.
---------
(a) Unicorp is not a party to, and its assets, products, technology
and properties are not bound by, any material contract, franchise, license
agreement, agreement, debt instrument or other commitments whether such
agreement is in writing or oral
(b) All contracts, agreements, franchises, license agreements, and
other commitments to which Unicorp is a party or by which its properties
are bound and which are material to the operations of Unicorp taken as a
whole are valid and enforceable by Unicorp in all respects, except as
limited by bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally;
(c) Unicorp is not a party to or bound by, and the properties of
Unicorp are not subject to any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any judgment,
order, writ, injunction, decree, or award which materially and adversely
affects, the business operations, properties, assets, or condition of
Unicorp; and
(d) Except as included or described in the Unicorp Schedules or
reflected in the most recent Unicorp balance sheet, Unicorp is not a party
to any oral or written (i) contract for the employment of any officer or
employee which is not terminable on 30 days, or less notice; (ii) profit
sharing, bonus, deferred compensation, stock option, severance pay, pension
benefit or retirement plan, (iii) agreement, contract, or indenture
relating to the borrowing of money, (iv) guaranty of any obligation, other
than one on which Unicorp is a primary obligor, for the borrowing of money
or otherwise, excluding endorsements made for collection and other
guaranties of obligations which, in the aggregate do not exceed more than
one year or providing for payments in excess of $25,000 in the aggregate;
(vi) collective bargaining agreement; or (vii) agreement with any present
or former officer or director of Unicorp.
Section 2.11 Material Contract Defaults. Unicorp is not in default in
----------------------------
any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Unicorp and there is no event of default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which Unicorp has not taken adequate steps to prevent
such a default from occurring.
Section 2.12 No Conflict With Other Instruments. The execution of this
-----------------------------------
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Unicorp is a party or to which any of its assets or operations are subject.
Section 2.13 Governmental Authorizations. Unicorp has all licenses,
----------------------------
franchises, permits, and other governmental authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal
and state securities or corporation laws, as hereinafter provided, no
authorization, approval, consent or order of, of registration, declaration or
filing with, any court or other governmental body is required in connection with
the execution and delivery by Unicorp of this Agreement and the consummation by
Unicorp of the transactions contemplated hereby.
Section 2.14 Compliance With Laws and Regulations. To the best of its
--------------------------------------
knowledge, Unicorp has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of Unicorp or
except to the extent that noncompliance would not result in the occurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities.
Section 2.15 Insurance. All of the properties of Unicorp are fully
---------
insured for their full replacement
8
cost.
Section 2.16 Approval of Agreement. The board of directors of Unicorp
-----------------------
has authorized the execution and delivery of this Agreement by Unicorp and has
approved this Agreement and the transactions contemplated hereby and will
recommend to its shareholders that they approve this Agreement and the
transactions contemplated hereby.
Section 2.17 Continuity of Business Enterprises. Unicorp has no
-------------------------------------
commitment or present intention to liquidate Affiliated Holdings or sell or
otherwise dispose of a material portion of Affiliated Holdings' business or
assets following the consummation of the transactions contemplated hereby.
Section 2.18 Material Transactions or Affiliations. Except as disclosed
--------------------------------------
herein and in the Unicorp Schedules, there exists no contract, agreement or
arrangement between Unicorp and any predecessor and any person who was at the
time of such contract, agreement or arrangement an officer, director, or person
owning of record or known by Unicorp to own beneficially, 5% or more of the
issued and outstanding common stock of Unicorp and which is to be performed in
whole or in part after the date hereof or was entered into not more than three
years prior to the date hereof. Neither any officer, director, nor 5%
shareholder of Unicorp has, or has had since inception of Unicorp, any known
interest, direct or indirect, in any such transaction with Unicorp which was
material to the business of Unicorp. Unicorp has no commitment, whether written
or oral, to lend any funds to, borrow any money from, or enter into any other
transaction with, any such affiliated person.
Section 2.19 Bank Accounts; Power of Attorney. Set forth in Schedule
-----------------------------------
2.19 is a true and complete list of (a) all accounts with banks, money market
mutual funds or securities or other financial institutions maintained by Unicorp
within the past twelve (12) months, the account numbers thereof, and all persons
authorized to sign or act on behalf of Unicorp, (b) all safe deposit boxes and
other similar custodial arrangements maintained by Unicorp within the past
twelve (12) months, and (c) the names of all persons holding powers of attorney
from Unicorp or who are otherwise authorized to act on behalf of Unicorp with
respect to any matter, other than its officers and directors, and a summary of
the terms of such powers or authorizations.
Section 2.20 Valid Obligation. This Agreement and all agreements and
-----------------
other documents executed by Unicorp in connection herewith constitute the valid
and binding obligation of Unicorp, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01 The Exchange. On the terms and subject to the conditions
-------------
set forth in this Agreement, on the Closing Date (as defined in Section 3.03),
each Affiliated Holdings Shareholder who shall elect to accept the exchange
offer described herein (the "Accepting Shareholders"), shall assign, transfer
and deliver, free and clear of all liens, pledges, encumbrances, charges,
restrictions or known claims of any kind, nature, or description, the number of
shares of common stock of Affiliated Holdings in the aggregate constituting
100% of the issued and outstanding shares of common stock of Affiliated Holdings
held by each of such shareholders; the objective of such Exchange being the
acquisition by Unicorp of 100% of the issued and outstanding common stock of
Affiliated Holdings. In exchange for the transfer of such securities by the
Affiliated Holdings Shareholders, Unicorp shall issue to the Affiliated Holdings
Shareholders (1) an aggregate of 75 million shares of common stock of Unicorp
(the "Initial Shares"). At the Closing, each Affiliated Holdings Shareholder
shall, on surrender of his certificate or certificates representing such
Affiliated Holdings shares to Unicorp or its registrar or transfer agent, be
entitled to receive a certificate or certificates evidencing his proportionate
interest in the Initial Shares. Upon consummation of the transaction
contemplated herein, assuming participation by all of the Affiliated Holdings
Shareholders, all of the shares of capital stock of Affiliated Holdinsg shall be
held by Unicorp.
Section 3.02 Anti-Dilution. The number of shares of Unicorp common stock
-------------
issuable upon
9
exchange pursuant to Section 3.01 shall be appropriately adjusted to take into
account any other stock split, stock dividend, reverse stock split,
recapitalization, or similar change in the Unicorp common stock which may occur
(i) between the date of the execution of this Agreement and the Closing Date, as
to the Initial Shares, and (ii) between the date of the execution of this
Agreement and the release date, as to the Additional Shares.
Section 3.03 Closing. The closing ("Closing") of the transactions
-------
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than July 29, 2004. Such
Closing shall take place at a mutually agreeable time and place.
Section 3.04 Closing Events. At the Closing, Unicorp, Affiliated
---------------
Holdings and each of the Accepting Shareholders shall execute, acknowledge, and
deliver (or shall ensure to be executed, acknowledged, and delivered) any and
all certificates, opinions, financial statements, schedules, agreements,
resolutions, rulings or other instruments required by this Agreement to be so
delivered at or prior to the Closing, together with such other items as may be
reasonably requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated hereby. Among
other things, Unicorp shall provide an opinion of counsel acceptable to ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, P.C. as to such matters as ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C. may reasonably
request
Section 3.05 Termination.
-----------
(a) This Agreement may be terminated by the board of directors of
either Unicorp or Affiliated Holdings at any time prior to the Closing Date if
there shall be any actual or threatened action or proceeding before any court or
any governmental body which shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in the judgement of such
board of directors, made in good faith and based upon the advice of its legal
counsel, makes it inadvisable to proceed with the Exchange.
In the event of termination pursuant to this paragraph (a) of Section 3.05,
no obligation, right or liability shall arise hereunder, and each party
shall bear all of the expenses incurred by it in connection with the
negotiation, drafting, and execution of this Agreement
(b) This Agreement may be terminated by the board of directors of
Unicorp at any time prior to the Closing Date if:
(i) the board of directors of Unicorp determines in good faith
that one or more of Unicorp's conditions to Closing has not occurred,
through no fault of Unicorp.
(ii) Affiliated Holdings shall fail to comply in any material
respect with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of Affiliated
Holdings contained herein shall be inaccurate in any material respect,
where such noncompliance or inaccuracy has not been cured within ten
(10) days after written notice thereof.
(iii) Affiliated Holdings updates its Schedules or disclaimers
that Unicorp finds unacceptable.
If this Agreement is terminated pursuant to this paragraph (b) of Section
3.05, this Agreement shall be of no further force or effect, and each party
shall bear its own costs incurred in connection with the negotiation,
preparation, and execution of this Agreement.
(c) This Agreement may be terminated by the board of directors of
Affiliated Holdings at any time prior to the Closing Date if:
(i) the board of directors of Affiliated Holdings determines
in good faith that one or more of Affiliated Holdings' conditions to
Closing has not occurred, through no fault of Affiliated holdings;
Affiliated Holdings (ii) Unicorp shall fail to comply in any
material respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties of
Unicorp contained herein shall be inaccurate in any material respect,
where such noncompliance or inaccuracy has not been cured within ten
(10) days after written
10
notice thereof.
(iii) Unicorp updates its disclosure or Schedule that Affiliated
Holdings finds unacceptable.
If this Agreement is terminated pursuant to this paragraph (c) of Section
3.05, this Agreement shall be of no further force or effect, and each party
shall bear its own costs incurred in connection with the negotiation,
preparation and execution of this Agreement.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. Unicorp and Affiliated
----------------------------------
Holdings will each afford to the officers and authorized representatives of the
other full access to the properties, books and records of Unicorp or Affiliated
Holdings, as the case may be, in order that each may have a full opportunity to
make such reasonable investigation as it shall desire to make of the affairs of
the other.
Section 4.02 Delivery of Books and Records. At the Closing, Affiliated
------------------------------
Holdings shall deliver to Unicorp the originals of the corporate minute books,
books of account, contracts, records, and all other books or documents of
Affiliated Holdings now in the possession of Affiliated Holdings or its
representatives.
Section 4.03 Third Party Consents and Certificates. Unicorp and
-----------------------------------------
Affiliated Holdings agree to cooperate with each other in order to obtain any
required third party consents to this Agreement and the transactions herein
contemplated.
Section 4.04 Reserved.
--------
Section 4.05 Reserved.
--------
Section 4.06 Consent of Affiliated Holdings Shareholders. ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
shall use his best efforts to obtain the consent of all Affiliated Holdings
Shareholders to participate in the Exchange.
Section 4.07 Reserved.
--------
Section 4.08 Exclusive Dealing Rights. Until 5:00 P.M. Central Daylight
-------------------------
Time on July 29, 2004.
(a) In recognition of the substantial time and effort which Unicorp
has spent and will continue to spend in investigating Affiliated Holdings
and its business and in addressing the matters related to the transactions
contemplated herein, each of which may preempt or delay other management
activities, neither Affiliated Holdings, nor any of its officers,
employees, representatives or agents will directly or indirectly solicit or
initiate any discussions or negotiations with, or, except where required by
fiduciary obligations under applicable law as advised by counsel,
participate in any negotiations with or provide any information to or
otherwise cooperate in any other way with, or facilitate or encourage any
effort or attempt by, any corporation, partnership, person or other entity
or group (other than Unicorp and its directors, officers, employees,
representatives and agents) concerning any merger, sale of substantial
assets, sale of shares of capital stock, or similar transactions involving
Affiliated Holdings (all such transactions being referred to as "Affiliated
Holdings Acquisition Transactions"). If Affiliated Holdings receives any
proposal with respect to a Affiliated Holdings Acquisition Transaction, it
will immediately communicate to Unicorp the fact that it has received such
proposal and the principal terms thereof.
(b) In recognition of the substantial time and effort which
Affiliated Holdings has spent and will continue to spend in investigating
Unicorp and its business and in addressing the matters related to the
transactions contemplated herein, each of which may preempt or delay other
management activities, neither Unicorp, nor any of its officers, employees,
representatives or agents will directly or indirectly solicit or initiate
any discussions or negotiations with, or, except where
11
required by fiduciary obligations under applicable law as advised by
counsel, participate in any negotiations with or provide any information to
or otherwise cooperate in any other way with, or facilitate or encourage
any effort or attempt by, any corporation, partnership, person or other
entity or group (other than Affiliated Holdings and its directors,
officers, employees, representatives and agents) concerning any merger,
sale of substantial assets, sale of shares of capital stock, (including
without limitation, any public or private offering of the common stock of
Unicorp or similar transactions involving Unicorp (all such transactions
being referred to as "Unicorp Acquisition Transactions"). If Unicorp
receives any proposal with respect to a Unicorp Acquisition Transaction, it
will immediately communicate to Affiliated Holdings the fact that it has
received such proposal and the principal terms thereof.
Section 4.09 Actions Prior to Closing.
----------------------------
(a) From and after the date of this Agreement until the Closing Date
and except as set forth in the Unicorp Schedules or Affiliated Holdings
Schedules or as permitted or contemplated by this Agreement, Unicorp
(subject to paragraph (d) below) and Affiliated Holdings respectively, will
each:
(i) carry on its business in substantially the same manner as
it has heretofore;
(ii) maintain and keep its properties in states of good repair
and condition as at present, except for depreciation due to ordinary
wear and tear and damage due to casualty;
(iii) maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by it;
(iv) perform in all material respects all of its obligations
under material contracts, leases, and instruments relating to or
affecting its assets, properties, and business;
(v) use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain its
relationship with its material suppliers and customers; and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state laws and
all rules, regulations, and orders imposed by federal or state
governmental authorities.
(b) From and after the date of this Agreement until the Closing Date,
neither Unicorp nor Affiliated Holdings will:
(i) make any changes in their articles or certificate of
incorporation or bylaws;
(ii) take any action described in Section 1.07 in the case of
Affiliated Holdings , or in Section 2.07, in the case of Unicorp (all
except as permitted therein or as disclosed in the applicable party's
schedules);
(iii) enter into or amend any contract, agreement, or other
instrument of any of the types described in such party's schedules,
except that a party may enter into or amend any contract, agreement,
or other instrument in the ordinary course of business involving the
sale of goods or services; or
(iv) sell any assets or discontinue any operations (other than
the Divestiture), sell any shares of capital stock (other than as
contemplated in Sections 4.07 and 4.08 hereof and the sale of
securities underlying existing warrants or options of Unicorp) or
conduct any similar transactions other than in the ordinary course of
business.
12
(c) In light of the fact that Affiliated Holdings ' Shareholders will
control Unicorp as a result of the Exchange, from and after the date of
this Agreement until the Closing Date, Unicorp shall take no action which
is material to its business without the prior written approval of
Affiliated Holdings , which Affiliated Holdings may give or withhold in its
sole discretion after consultation with Unicorp.
Section 4.10 Reserved.
--------
Section 4.11 Indemnification.
---------------
(a) Affiliated Holdings hereby agrees to indemnify Unicorp and each
of the officers, agents and directors of Unicorp as of the date of
execution of this Agreement against any loss, liability, claim, damage, or
expense (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim whatsoever), to which it
or they may become subject arising out of or based on any inaccuracy
appearing in or misrepresentations made under Article I of this Agreement.
The indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and
termination of this Agreement.
(b) Unicorp hereby agrees to indemnify Affiliated Holdings and each
of the officers, agents, and directors of Affiliated Holdings and each of
the Affiliated Holdings Shareholders as of the date of execution of this
Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they may
become subject arising out of or based on any inaccuracy appearing in or
misrepresentation made under Article II of this Agreement. The
indemnification provided for in this paragraph shall survive the Closing
and consummation of the transactions contemplated hereby and termination of
this Agreement.
Section 4.12 Indemnification of Subsequent Corporate Actions.
---------------------------------------------------
(a) No officer, director, controlling shareholder, agent or
representative of Unicorp, or any other person currently affiliated with
Unicorp, has offered or agreed to assist in the promotion, market making,
development, enhancement, or support of Unicorp's business, capital
raising, or securities market.
(b) Unicorp hereby represents and warrants that it will indemnify and
hold harmless any officer, director, controlling shareholder, agent or
representative of Unicorp, or any other person affiliated with Unicorp,
from any decisions, activities, or conduct of Unicorp contemporaneous with,
or subsequent to this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF UNICORP
The obligations of Unicorp under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants.
-----------------------------------------------------------
The representations and warranties made by Affiliated Holdings in this Agreement
were true when made and shall be true at the Closing Date with the same force
and effect as if such representations and warranties were made at and as of the
Closing Date (except for changes therein permitted by this Agreement).
Affiliated Holdings shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or complied with by
Affiliated Holdings prior to or at the Closing. Unicorp shall be furnished with
a certificate, signed by a duly authorized executive officer of Affiliated
Holdings and dated the Closing Date, to the foregoing effect.
Section 5.02 Officer's Certificate. Unicorp shall have been furnished
----------------------
with a certificate dated the
13
Closing Date and signed by a duly authorized officer of Affiliated Holdings to
the effect that no litigation, proceeding, investigation, or inquiry is pending,
or to the best knowledge of Affiliated Holdings threatened, which might result
in an action to enjoin or prevent the consummation of the transactions
contemplated by this Agreement, or, to the extent not disclosed in the
Affiliated Holdings Schedules, by or against Affiliated Holdings , which might
result in any material adverse change in any of the assets, properties,
business, or operations of Affiliated Holdings .
Section 5.03 Good Standing. Unicorp shall have received a certificate of
--------------
good standing from Affiliated Holdings , dated as of a date within ten days
prior to the Closing Date certifying that Affiliated Holdings is in good
standing as a corporation in the State of Texas.
Section 5.04 Approval by Affiliated Holdings Shareholders. The Exchange
---------------------------------------------
shall have been approved, and shares delivered in accordance with Section 3.01,
by the holders of not less than ninety percent (90%) of the outstanding common
stock of Affiliated Holdings, unless a lesser number is agreed to by Unicorp.
Section 5.05 No Governmental Prohibition. No order, statute, rule,
-----------------------------
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.06 Consents. All consents, approvals, waivers or amendments
--------
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Unicorp and Affiliated Holdings after the Closing Date on the
basis as presently operated shall have been obtained.
Section 5.07 Other Items. Unicorp shall have received a list of
------------
Affiliated Holdings Shareholders containing the name, address, and number of
shares held by each Affiliated Holdings Shareholder as of the date of Closing,
certified by an executive officer of Affiliated Holdings as being true, complete
and accurate.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF AFFILIATED HOLDINGS
AND THE AFFILIATED HOLDINGS SHAREHOLDERS
The obligations of Affiliated Holdings and the Affiliated Holdings
Shareholders under this Agreement are subject to the satisfaction, at or before
the Closing Date, of the following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants.
-----------------------------------------------------------
The representations and warranties made by Unicorp in this Agreement were true
when made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date.
Additionally, Unicorp shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by
Unicorp and shall have satisfied the conditions described below prior to or at
the Closing:
(a) Immediately prior to the Closing, Unicorp shall have no more than
an aggregate of 596,469 shares of common stock issued and outstanding or
issuable pursuant to outstanding warrants and options, excluding any shares
issuable pursuant to the Exchange.
(b) The shareholders of Unicorp shall have approved the Exchange and
the related transactions described herein.
Affiliated Holdings shall have been furnished with certificates, signed by duly
authorized executive officers of Unicorp and dated the Closing Date, to the
foregoing effect.
Section 6.02 Officer's Certificate. Affiliated Holdings shall have been
----------------------
furnished with certificates dated the Closing Date and signed by duly authorized
executive officers of Unicorp, to the effect that no litigation, proceeding,
investigation or inquiry is pending, or to the best knowledge of Unicorp
threatened, which
14
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement or, to the extent not disclosed in
the Unicorp Schedules, by or against Unicorp, which might result in any material
adverse change in any of the assets, properties or operations of Unicorp.
Section 6.03 Good Standing. Affiliated Holdings shall have received a
--------------
certificate of good standing from the Secretary of State of the State of Nevada
or other appropriate office, dated as of a date within ten days prior to the
Closing Date certifying that Unicorp is in good standing as a corporation in the
State of Nevada and has filed all tax returns required to have been filed by it
to date and has paid all taxes reported as due thereon.
Section 6.04 No Governmental Prohibition. No order, statute, rule,
-----------------------------
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.05 Other Items. Affiliated Holdings shall have received an
------------
acceptable legal opinion as contemplated in Section 3.04.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Brokers. Unicorp and Affiliated Holdings agree that, there
-------
were no finders or brokers involved in bringing the parties together or who were
instrumental in the negotiation, execution or consummation of this Agreement.
Unicorp and Affiliated Holdings each agree to indemnify the other against any
claim by any third person other than those described above for any commission,
brokerage, or finder's fee arising from the transactions contemplated hereby
based on any alleged agreement or understanding between the indemnifying party
and such third person, whether express or implied from the actions of the
indemnifying party.
Section 7.02 Governing Law. This Agreement shall be governed by,
--------------
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to the matters of state law, with the laws
of the State of Texas without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees that any
legal or equitable action or proceedings arising under or in connection with
this Agreement shall be brought exclusively in the federal courts of the United
States, (b) by execution and delivery of this Agreement, irrevocably submits to
and accepts, with respect to any such action or proceeding, generally and
unconditionally, the jurisdiction of the aforesaid court, and irrevocably waives
any and all rights such party may now or hereafter have to object to such
jurisdiction.
Section 7.03 Notices. Any notice or other communications required or
-------
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
15
If to Unicorp, to: UNICORP, INC.
C/O Vanderkam & Associates
▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Affiliated Holdings, to: Affiliated Holdings
Attention: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.04 Attorney's Fees. In the event that either party institutes
---------------
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the prevailing party shall be reimbursed by
the losing party for all costs, including reasonable attorney's fees, incurred
in connection therewith and in enforcing or collecting any judgement rendered
therein.
Section 7.05 Confidentiality. Each party hereto agrees with the other
---------------
that, unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
Section 7.06 Public Announcements and Filings. Unless required by
-----------------------------------
applicable law or regulatory authority, none of the parties will issue any
report, statement or press release to the general public, to the trade, to the
general trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by the parties. Copies of any such
filings, public announcements or disclosures, including any announcements or
disclosures mandated by law or regulatory authorities, shall be delivered to
each party at least one (1) business day prior to the release thereof.
Section 7.07 Schedules; Knowledge. Each party is presumed to have full
---------------------
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.08 Third Party Beneficiaries. This contract is strictly
---------------------------
between Unicorp and Affiliated Holdings , and, except as specifically provided,
no director, officer, stockholder (other than the Affiliated Holdings
Shareholders), employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this Agreement.
Section 7.09 Expenses. Whether or not the Exchange is consummated, each
--------
of Unicorp and Affiliated Holdings will bear their own respective expenses,
including legal, accounting and professional fees, incurred in connection with
the Exchange or any of the other transactions contemplated hereby.
Section 7.10 Entire Agreement. This Agreement represents the entire
-----------------
agreement between the
16
parties relating to the subject matter thereof and supersedes all prior
agreements, understandings and negotiations, written or oral, with respect to
such subject matter.
Section 7.11 Survival; Termination. The representations, warranties, and
---------------------
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of one year.
Section 7.12 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.13 Amendment or Waiver. Every right and remedy provided herein
-------------------
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with
respect to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.14 Best Efforts. Subject to the terms and conditions herein
--------------
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first-above written.
ATTEST: UNICORP, INC.
BY:
-----------------------
Secretary or Assistant Secretary President
ATTEST: AFFILIATED HOLDINGS, INC.
BY:
-----------------------
Secretary or Assistant Secretary President
The undersigned shareholders of _AFFILIATED HOLDINGS, INC. hereby agree to
participate in the Exchange on the terms set forth above. Subject to Section
7.11 above, each of the undersigned hereby represents and affirms that he has
read each of the representations and warranties of AFFILIATED HOLDINGS, INC. set
out in Article I hereof and that, to the best of his knowledge, all of such
representations and warranties are true and correct.
▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇ ▇▇▇▇▇, individually
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▇▇▇▇▇▇ ▇▇▇▇, individually
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▇▇▇▇ ▇. ▇▇▇▇▇, individually
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