EXHIBIT 6.1
AGREEMENT FOR SALE AND PURCHASE
OF ASSETS OF A BUSINESS
THIS AGREEMENT is made and entered into this 16th day of February,
1998, by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
("Ferrari") jointly ("Buyer") and WARNER TECHNOLOGIES, INC. ("Seller").
W I T N E S S E T H
This Agreement is made with reference to the following facts:
A. Seller has for several years last past, and is presently conducting
a design and build energy-efficient lighting, mechanical and building
automation systems business and selling related products and services in the
energy efficiency and electric industry restructuring business (the
"Business"), with offices located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (jointly the "Premises") under the name Warner Technologies,
Inc.
B. Seller desires to sell all of the assets of the Business to Buyer,
and Buyer desires to purchase all of the assets of the Business from Seller
subject to the terms and conditions contained herein.
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▇. ▇▇▇▇▇▇▇▇ and Ferrari contemplate forming a new corporation in the
State of California under the name Warner Technologies Acquisition Company
("Acquisition Co.") to purchase the Business and therefore the term Buyer
shall include Acquisition Co.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, Buyer and Seller hereby agree as follows:
1. SALE OF ASSETS.
Pursuant to the terms and conditions set forth in this Agreement,
Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller all
of the Business, assets and property of the Business, including all
manufacturing and assembling equipment, tools, dies and molds, certain
intangibles consisting of trade secrets, software, know-how, plans,
specifications, trademarks and customer lists (including the name "Warner
Technologies"), the Leases assigned for all Premises (jointly the "Leases"),
leasehold improvements, lease deposits, work in process and supplies, and
contract rights, including Envest and LAUSD, and any goodwill of the Business
(collectively, the "Acquired Assets"). The Acquired Assets shall, without
limitation, include all of the assets and property of Seller reflected in
Seller's balance sheet of June 30, 1997, referred to in Paragraph 3B, hereof,
and all of the assets and property hereafter acquired by Seller before the
Closing (as referred to in Paragraph 13, hereof), except those assets used or
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disposed of in the ordinary course of business as permitted by this Agreement.
2. CONSIDERATION FROM BUYER.
As full payment for the transfer of the Acquired Assets by Seller
to Buyer, Buyer shall deliver at the Closing a cashier's check payable to the
order of Seller in the amount of Six Hundred and Fifty Thousand Dollars
($650,000.00) (the "Purchase Price").
3. REPRESENTATIONS AND WARRANTIES BY SELLER.
Seller represents, warrants and agrees as follows:
A. OWNERSHIP AND GOOD STANDING. Seller owns 100% of the Business
and the Acquired Assets and Seller is in good standing as a domestic
corporation under the laws of the State of Nevada, and as a foreign
corporation under the laws of the States of California and the Commonwealth
of Massachusetts.
B. FINANCIAL STATEMENTS. The balance sheet of Seller as of June
30, 1997, and Seller's profit and loss statement for the twelve months ended
June 30, 1997, as well as Seller's Quarterly Report for the period ended
December 31, 1997, copies of which are attached hereto, marked EXHIBIT "A"
and "B," respectively (jointly, the "Financials"), accurately present in
accordance with generally accepted accounting principles Seller's financial
condition at said dates and Seller's operations for said periods. Since said
dates there has not been any material adverse change in the financial
condition or operations of Seller from that shown on the Financials, nor have
there been any other changes in such condition except changes occurring in
the ordinary course of Seller's business.
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C. UNDISCLOSED LIABILITIES. Seller is not subject to any
obligation or liability of any kind, absolute or contingent, undisclosed in
the Financials or not shown in EXHIBIT "C". EXHIBIT "C" attached hereto and
by this reference made a part hereof contains a true and complete schedule of
all liabilities and obligations of Seller.
D. TITLE TO PROPERTY. Seller has clear and unencumbered title to
the Acquired Assets. Additionally, except for the liabilities disclosed on
EXHIBIT "C" attached hereto, all of which shall be assumed by Seller, Seller
has clear and unencumbered title to all of the property and assets listed or
reflected in the Financials. All assets and property of Seller are in the
possession of Seller and such assets and property are in good operating
condition and repair.
E. TAX AUDITS AND RETURNS. Seller has filed all federal, state
and local tax returns required by law within the times and in the manner
prescribed by law and Seller has paid all taxes, assessments, and penalties
due and payable with respect thereto.
F. LITIGATION. There is no litigation, governmental proceeding
or investigation threatened or in prospect against Seller or relating to any
of Seller's assets or Business other than items listed in EXHIBIT "I".
Seller has no knowledge of any action pending or threatened to change the
zoning of building ordinances affecting The Premises or any pending or
threatened condemnation of The Premises.
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G. COMMITMENTS. Except for contracts, agreements and commitments
entered into in the ordinary course of business and which are terminable by
Buyer on not more than thirty (30) days notice and which do not in any one
instance involve a consideration in excess of $20,000.00, and which do not in
the aggregate involve consideration in excess of $150,000.00, except as
listed on EXHIBIT "E" attached hereto and by this reference made a part
hereof, the Business and Acquired Assets are not subject to any written or
oral contracts, agreements, or commitments including, but not limited to,
those of the following types:
(i) Contract for the employment or compensation of any individual;
(ii) Contract with any labor union;
(iii) Contract for the future purchase of materials, supplies, or
equipment, except those entered into in the ordinary course of business, the
aggregate amount of which does not exceed $5,000.00, and wherein the
consideration involved with respect to any one contract is not in excess of
$2,000.00;
(iv) Contract for the future purchase of services wherein receipt
of said services is more than three months after the date of such contract;
(v) Distribution, sale agency contract, franchise agreement, or
advertising commitment;
(vi) Pension, profit sharing, bonus, deferred compensation,
retirement or other employee plan with respect to employees of the Business;
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(vii) A lease of real or personal property under which the Business
is a lessor or lessee, except as listed on EXHIBIT "E" attached hereto and by
this reference made a part hereof;
(viii) Any consulting agreement;
(ix) Any other contract, agreement or commitment not made in the
ordinary course of business;
There have been delivered or will be delivered prior to the Closing to
Buyer true and correct copies of each of the contracts, agreements or
commitments listed in each of the exhibits to this Agreement, and where
consents to assignments of such contracts to Buyer is required, Seller shall
obtain all consents to such assignments at or before the Closing. To the
best of Seller's knowledge and belief, Seller has performed all obligations
required to be performed by Seller to date and is not in default under any
contract, agreement, lease, or other commitment to which it is a party, and
all of such contracts are in full force and effect and enforceable in
accordance with their respective terms.
H. NO CHANGE IN CIRCUMSTANCES. Except as set forth in EXHIBIT
"F" attached hereto and by this reference made a part hereof, or otherwise
expressly provided for herein, since June 30, 1997, Seller has not:
(i) Incurred any obligations or liabilities (absolute or
contingent), known or unknown, except liabilities incurred and outstanding
obligations under contracts entered into in the ordinary course of business,
whether now due or to become due;
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(ii) Discharged or satisfied any lien or encumbrance or paid
any obligation or liability (absolute or contingent) other than liens,
encumbrances, obligations or liabilities reflected in the Financials;
(iii) Mortgaged, pledged, subjected to any lien, charge or
other encumbrances, any of its assets, tangible or intangible;
(iv) Sold or transferred any of its assets or cancelled any
debts or claims, except in each case in the ordinary course of business;
(v) Suffered any material operating or extraordinary loss or
waived any right of substantial value;
(vi) Made any loan to, borrowed any money from, or entered
into any contract or understanding with any employee or principal of the
Business;
(vii) Made any payment of or contracted for payment of any
bonus, gratuity or other compensation, other than wages and salaries in
effect on June 30, 1997, and wages and salary adjustments made in the
ordinary course of business to non-officer employees;
(viii) Entered into any material transaction other than in the
ordinary course of business;
(ix) Suffered any material adverse change in its business
operations or conditions (financial or otherwise), business organization,
personnel or properties, other than changes
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applicable to the industry in general, in which it conducts its business.
I. NO BROKERAGE COMMISSION. Seller has not entered into any
agreement with any person, firm, or corporation or become indirectly a party
to any agreement for the payment of any commission, brokerage, or finder's
fee in connection with this Agreement.
J. CONTINUATION OF FINANCIAL STATUS. Seller is not aware of any
decrease in the profit margin of the Business since the preparation of the
Financials, nor is aware of any of the principal customers of the Business
intending to discontinue doing business which they are now doing business
with.
K. NO UNTRUE STATEMENT. None of the warranties, representations
and agreements made by Seller herein or in the exhibits, schedules or
documents relating hereto, nor the Financials, nor any certificate or
memorandum furnished or to be furnished by Seller or on its behalf, contains
or will contain any statement of a material fact known to be untrue or
knowingly omit to state a material fact necessary to make the statements
contained herein or therein not misleading, and all warranties shall survive
the Closing.
L. PURCHASE OF BUYER'S STOCK AND OPTIONS OF SELLER. Buyers shall
deliver at the closing all of the stock of Seller owned by Buyer along with
any options to purchase stock of Seller (collectively Buyer's Stock), all of
which shall be purchased by Seller for $1,000.00.
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4. REPRESENTATIONS AND WARRANTIES BY BUYER. Hathaway, Ferrari and
Acquisition Co. each individually, jointly and collectively, represent,
warrant and agree as follows:
A. INDEPENDENT DUE DILIGENCE INVESTIGATION. Buyers have fully and
completely inspected the Acquired Assets and the Business and have obtained
the advice and counsel of independent consultants, attorneys, accountants and
others in connection with their inspection, evaluation and purchase of the
same.
B. FULL DISCLOSURE. Buyer confirms, acknowledges and affirms that
they in fact have been running the Business and operating the Acquired Assets
and have full and complete knowledge of the same.
C. NO BROKERAGE COMMISSION. Buyer has not entered into any
agreement with any person, firm or corporation or become indirectly a party
to any agreement for the payment of any commission, brokerage or finder's fee
in connection with this agreement.
D. ORGANIZATION AND QUALIFICATION OF ACQUISITION CO. When
Acquisition Co. is formed, it will be a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
California and will have the requisite corporate power to conduct the
Business.
E. ASSIGNMENT OF LEASE. At the Closing, Seller shall deliver to
Buyer assignments of the Lease along with the consents of the landlord with
respect thereto and a release of Seller with respect to any further
obligations under the Leases. Provided,
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however, if a Lease has only a month-to-month term, then no such assignment
or consent will be required.
F. NO UNTRUE STATEMENTS. None of the warranties, representations
and agreements made by Buyer herein or in the Exhibit Schedules or documents
relating hereto contains or will contain any statement of a material fact
known to be untrue, or knowingly omit to state a material fact necessary to
make the statements contained herein or therein not misleading, and all
warranties shall survive the Closing.
G. RESIGNATION AS OFFICERS AND DIRECTORS; TERMINATION OF
EMPLOYMENT AGREEMENTS. At the Closing, Hathaway and Ferrari shall each
tender their resignations as Officers and Directors of Seller (the
"Resignation"). Additionally, at the Closing all employment agreements
between Hathaway and Ferrari shall be terminated and cancelled, and except
for the then current accrued and unpaid salary, vacation and sick days, no
further payments, compensation, salary or termination or severance payment of
any kind or nature will be due or payable to them or either of them, however,
prepaid but unearned bonuses of Hathaway and Ferrari in the total amount of
$32,000, with respect to both of them, will be cancelled and the parties
shall execute a release in the form attached hereto marked EXHIBIT G and by
this reference made a part hereof (the Release).
5. ORDINARY COURSE OF BUSINESS AND ACCESS TO BOOKS AND RECORDS.
5.1 Seller agrees that from the date hereof to the
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Closing, Seller will conduct its business and affairs only in the "ordinary
course of business" and the ordinary course of business shall mean the
conduct and operation of the Business of Seller only in the manner in which
such business was conducted and operated during the twelve month period
ending June 30, 1997, making due allowance for changes in the operation of
the Business required by any increase in volume of sales subsequent thereto
following usual and ordinary accounting practices making ordinary accruals
incurring ordinary liabilities and expenditures and making ordinary
commitments for merchandise, insurance, rentals, and other ordinary expenses.
5.2 From and after the date hereof, Seller shall afford to Buyer
and the representatives of Buyer full and free access to the personnel,
properties, records and books of account of Seller at all reasonable times
during business hours, and shall furnish to such officers and representatives
such other information as Buyer may reasonably request. Seller shall also
authorize the independent accountants of Buyer to permit Buyer's accountants
and employees to examine records and working papers pertaining to the
Financials of Seller and its tax returns.
6. PURCHASE OF THE ACQUIRED ASSETS.
Subject to the terms and conditions of this Agreement, and in
accordance with the provisions herein set forth, Seller hereby agrees at the
Closing to transfer, convey, assign and deliver to Buyer and Buyer agrees to
acquire and accept at the Closing Date all of the Acquired Assets.
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7. ASSUMPTION OF LIABILITIES.
Buyer shall assume all obligations, liabilities or indebtedness
relating to the Acquired Assets or Business operations and which are
specifically set forth in paragraph (a) of EXHIBIT "C" attached hereto except
the liabilities, obligations or indebtedness set forth in paragraph (b) of
EXHIBIT "C" which are to be assumed by Seller.
8. DISCLAIMER BY SELLER; RELEASE BY BUYER. Seller and Buyer
acknowledge, understand, confirm and agree that HATHAWAY and FERRARI have
heretofore been managing and operating the Business and the Acquired Assets
and that each of them have reasonably complete knowledge of the nature and
extent of the future prospects of the Business. Accordingly, Seller makes no
warranties of any kind or nature express or implied as to the future
profitability of the Business, continuation after the Closing of any existing
contract between Seller and any customer of Seller, and future prospects of
the Business, and Buyer is making its own independent judgment and decision
and is additionally relying upon advice of counsel of Buyer's choice as to
these matters.
9. COVENANT NOT TO COMPETE. At the Closing, Seller shall deliver to
Buyer a Covenant Not to Compete from Seller in the form attached hereto
marked EXHIBIT "H" and by this reference made a part hereof.
10. BOARD OF DIRECTORS AND SHAREHOLDERS' APPROVAL. As a condition of
Seller's obligation hereunder, Seller shall have obtained the approval of
this Agreement and the sale of the
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Business and Acquired Assets by the majority of the Board of Directors of
Seller and an affirmative vote of greater than 50% of the record-holders of
the voting stock of Seller (collectively the "Approvals").
11. AMENDMENT OF ARTICLES OF INCORPORATION OF SELLER. At the Closing,
Seller shall deliver to Buyer a fully executed copy of an Amendment of the
Articles of Incorporation of Seller changing the name of Seller from Warner
Technologies, Inc. to a name dissimilar thereto (the "Amended Articles")
along with a letter of consent to the Secretary of State of the State of
California authorizing and consenting to the use of the name "Warner
Technologies, Inc." by Acquisition Co. (the "Consent Letter"). At the
Closing, Seller shall cause the Amended Articles to be forwarded to the
Secretary of State of the State of California for filing along with a copy
thereof to counsel for Seller.
12. EVALUATION AND FAIRNESS. Seller shall obtain an independent
valuation of the Business and the Acquired Assets by the accounting firm of
Singer, Lewak, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and a fairness opinion from The Mentor
Group. Seller shall be solely responsible for the costs of said evaluation
and fairness opinion.
13. CLOSING.
13.1 The Closing of the transaction provided for herein (the
"Closing") shall take place at the offices of Turner, Gerstenfeld, ▇▇▇▇,
▇▇▇▇▇▇ & Young, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, at 10:00 a.m., on March
31, 1998, effective as of December 31, 1997. The date and time when the
Closing takes place is herein
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referred to as the "Closing Date." The Closing Date may be postponed until a
later time or date, by mutual agreement of the parties. In the event of any
postponement, all references in this Agreement to the Closing Date shall be
deemed to refer to the time and date to which the Closing Date shall have
been postponed.
13.2 At the Closing, the parties hereto shall deliver the
following items:
By BUYER:
A. A cashier's check in the amount of the Purchase Price.
B. All certificates of Buyer's Stock owned by Buyer with a
due endorsement thereon selling and transferring to Seller said stock and
Buyer's Stock options.
C. The Resignations.
D. The Release executed by Hathaway and Ferrari.
By SELLER:
A. If applicable, the original assignments of the Leases to
the Premises, the landlord's consent thereto and the release of Seller from
any further obligation under the Lease.
B. A good and sufficient ▇▇▇▇ of Sale in the form approved
by counsel for Buyer transferring to Buyer all of the Acquired Assets and an
Assignment by Seller to Buyer of all contracts relating to the Business
including, but not limited to, Envest and LAUSD, together with consents to
the assignments of all such contracts.
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C. The Covenant Not to Compete in the form attached as
EXHIBIT "H".
D. The Approvals.
E. The Amended Articles of Incorporation.
F. The Consent letter.
G. The Consents to Assignment of Contracts as described in the
last paragraph of Paragraph 3G.
H. The Release executed by Seller
14. CONDITIONS PRECEDENT TO THE PAYMENT.
The obligations of Buyer to consummate this Agreement shall be
subject to and shall be conditioned upon each of the following conditions
precedent any of which may be waived in whole or in part by notice of waiver
delivered, in writing, by Buyer to Seller:
A. No properties or assets of Seller shall have suffered any
destruction or damage by fire, accident or other casualty or act of God
affecting in a material and adverse way the conduct of the business of
Seller, whether or not covered by insurance.
B. Except as otherwise permitted by this Agreement, or consented
to, in writing by Buyer, the representations and warranties of Seller which
are contained in this Agreement, or in any written statement which shall be
delivered to Buyer pursuant to this Agreement, shall be correct in all
material respects on and as of the Closing Date, as though such
representations and warranties
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were made at and as of such time and Seller shall have performed all
obligations to be performed by Seller prior to the Closing Date.
15. COVENANTS TO SURVIVE CLOSING.
All covenants, agreements, representations and warranties made
hereunder and in any collateral document delivered at the Closing pursuant
hereto shall be deemed to have been relied upon by Buyer and shall survive
the execution of this Agreement, the Closing, and any investigation that
Buyer or its agent or employees may have made prior to the Closing.
16. NOTICES.
Any notice or communication given pursuant hereto by either party
to the other party shall be in writing and delivered or mailed by registered
or certified mail, postage prepaid, return receipt requested, personal
delivery or facsimile transmission, as follows:
If to Seller: WARNER TECHNOLOGIES, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Buyer: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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With copy to: PETILLON & ▇▇▇▇▇▇
1260 Union Bank Tower
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other address as hereafter shall be furnished, in writing, by
either party hereto to the other. Notices shall be deemed given on the
second business day (Saturdays excluded) following the day of mailing.
17. INDEMNIFICATION.
17.1 Seller hereby indemnifies and holds Buyer, Buyer's Board of
Directors and Shareholders and their respective agents, representatives,
attorneys and accountants, and their heirs, successors and assigns
(collectively "Releasees") free and harmless from and of any and all
liability, loss, cost, damage, or expense, including reasonable attorneys'
fees which Releasees may suffer or incur as a consequence of (i) the
incorrectness or breach of or the defense of any claim, action, or proceeding
asserting the incorrectness or breach of any of the representations,
warranties, promises or agreements of Seller which are set forth in this
Agreement, or (ii) the liabilities and obligations assumed by Seller set
forth in paragraph (b) of EXHIBIT "C".
17.2 Buyer hereby indemnifies and holds Seller, Seller's Board of
Directors and Seller's Shareholders and their respective agents,
representatives, attorneys and accountants, and their heirs, successors and
assigns, (collectively Releasees) free and harmless from (i) any and all
liability, loss, cost, damage or expense, including reasonable attorney's
fees which Releasees may
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suffer or incur as a consequence of the breach of any undertaking, warranty
or representation of Buyer or any of them with respect to the matters set
forth herein; (ii) the liabilities and obligations assumed by Buyer set forth
in paragraph (a) of EXHIBIT "C"; (iii) ownership of the Acquired Assets and
operation of the Business by Buyer after the Closing Date; and (iv) any and
all liabilities and expenses arising out of the litigation described in
EXHIBIT "I" attached hereto.
17.3 If either party hereunder determines that it may be entitled
to indemnification, such party shall give written notice to the other party
specifying the bases for its claim for indemnification, the nature of the
claim and the estimated amounts for which the claimant is entitled to be
indemnified. If the notified party fails, neglects or refuses to respond in
writing within thirty days after receipt of such notice, the claiming party
shall have the right to request Arbitration. The claiming party shall do so
by making demand for Arbitration upon the other party, specifying in such
demand the nature of the dispute. The Arbitration shall be held in Los
Angeles County, State of California in accordance with the Commercial
Arbitration Rules of the American Arbitration Association to the extent that
they do not conflict with the following provisions which shall supersede: the
parties agree to submit the dispute to one arbitrator before the American
Arbitration Association ("AAA") in Los Angeles County, California, and to use
their best efforts to obtain an expeditious resolution. The decision of the
AAA shall be final and binding and
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may be enforced by judgment upon application to a court of competent
jurisdiction. Notwithstanding any rule of the AAA to the contrary,
California Code of Civil Procedure Section 1283.05 shall dictate the rights
of both parties to conduct discovery. The parties also agree that a
restraining order maintaining the status quo and/or a writ of attachment may
be obtained by any party pending the resolution of the dispute from the AAA.
If, for any reason AAA refuses to hear and decide the question of imposition
of a restraining order and/or a writ of attachment as herein contemplated, a
party then may apply to a court of competent jurisdiction for the issuance of
such an order. The arbitration shall then proceed in regards to all other
issues and matters. The award must be based on, and accompanied by, a
written statement of decision explaining the factual and legal basis for the
award as to each of the principal controverted issues at the hearing. The
award shall be confirmed and entered as a judgment by the Superior Court of
this state. The award may be appealed under the same standards specified in
California law applicable to appeals from the Superior Court.
18. INTEGRATION, INTERPRETATION AND MISCELLANEOUS PROVISIONS.
18.1 ENTIRE AGREEMENT. This Agreement is the entire Agreement
between the parties hereto with respect to the subject matter hereof.
18.2 ADDITIONAL DOCUMENTS. Each of the parties hereto agrees to
execute, acknowledge and deliver at or after the Closing such additional
instruments, writings, or documents, including
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without limitation, documents of transfer or assignment as may be required in
order to carry out and give effect of the transaction contemplated by this
Agreement.
18.3 ATTORNEYS' FEES. If any party brings an action against the
other party hereto with respect to the interpretation of the terms herein or
by reason of any breach of any agreements, representations, warranties,
duties, obligations or other provisions of this Agreement by the other party,
then the prevailing party in whose favor judgment is entered in such action,
shall be entitled to have and recover of the other party all costs and
expenses incurred or sustained by such party in connection with the
initiation and prosecution of the action including, without limitation,
attorneys' fees, expert witness fees, accountants' fees and court costs, even
though not taxable as such. As used herein, attorneys' fees shall be deemed
to mean the full and actual cost of any legal services actually performed in
connection with the matters involved calculated on the basis of the usual fee
charged by the attorneys performing such services and shall not be limited to
"reasonable attorneys' fees" as defined in any statute or court rule.
18.4 HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of Seller's and Buyer's heirs,
successors and assigns. It is acknowledged, understood and agreed that
HATHAWAY and FERRARI shall have the right to assign all rights hereunder to
Acquisition Co. upon condition, however, that the warranties, representations
and
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indemnifications of HATHAWAY and FERRARI shall not be impaired, diminished,
reduced or exonerated.
18.5 PARTIES IN INTEREST. Nothing herein, whether express or
implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons other than the parties to it and their
respective successors and assignees, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any
third party any right of subrogation or action over or against any parties to
this Agreement.
18.6 EXPENSES. Seller shall pay all costs and expenses incurred or
to be incurred by it in negotiating and preparing this Agreement and in
closing and consummating the transactions contemplated by this Agreement,
including all costs for legal, accounting, fairness opinion and related
services, not to exceed an aggregate of $75,000. Buyer shall pay any such
costs in excess of $75,000.
18.7 WAIVERS AND AMENDMENTS. This Agreement may be amended,
modified, superseded, cancelled, renewed or extended and the terms and
conditions hereof may be waived only by written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance.
18.8 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of California.
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18.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
18.10 HEADINGS. The headings in this Agreement are intended
solely for convenience of reference and shall be given no effect in the
interpretation of this Agreement.
18.11 VALIDITY. In the event that any provision in this
Agreement shall be held invalid, the same shall not affect in any respect
whatsoever the validity of the remainder of this Agreement.
18.12 EXHIBITS AND SCHEDULES. The Exhibits and Schedules
attached hereto are part of this Agreement as if set forth in full herein.
Any material or information disclosed or set forth in this Agreement or in
any Exhibit or Schedule delivered in connection herewith shall be deemed set
forth at each relevant portion of this Agreement without the necessity of
repetition thereof.
18.13 FURTHER ASSURANCES. If, at any time, any of the parties
hereto shall consider or be advised that any further assignments or
assurances in law or any other things are necessary or desirable to assure
itself the benefit of this Agreement according to the terms hereof, or the
title to any property or rights transferrable hereunder, the other party
shall execute and make all such reasonable, proper assurances and assignments
and do all things reasonably necessary and proper to vest title in such
property or rights in such party, and otherwise carry out the terms of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first set forth above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. Ferrari
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
WARNER TECHNOLOGIES ACQUISITION
COMPANY
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
By: /s/ ▇▇▇▇▇▇ ▇. Ferrari
--------------------------
"Buyer"
WARNER TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
"Seller"
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LIST OF ATTACHMENTS TO EXHIBIT 6.1
The following attachments to Exhibit 6.1 will be furnished supplementally to
the Securities and Exchange Commission upon request:
EXHIBIT "A" Seller's Balance Sheet and Profit and Loss Statement for the
Twelve Months Ended June 30, 1997
EXHIBIT "B" Seller's Quarterly Report for the Three-Month and Six-Month
Period Ended December 31, 1997
EXHIBIT "C" Schedule of Liabilities and Obligations of Seller
EXHIBIT "D" Contracts, Agreements and Commitments As of December 31, 1997
EXHIBIT "E" Lease of Real or Personal Property
EXHIBIT "F" No Change in Circumstances
EXHIBIT "G" General Release
EXHIBIT "H" Seller's Covenant Not to Compete
EXHIBIT "I" Litigation