Exhibit 1
STOCK PURCHASE AGREEMENT
among
Ocean West Holding Corporation,
Ocean West Enterprises, Inc.,
dba Ocean West Funding,
and
Monogenesis Corporation
Dated: ___________, 2002
STOCK PURCHASE AGREEMENT
Table of Contents
ARTICLE I
SECURITIES
1.1 .................................................................... 2
Issuance of Securities to Monogenesis .................................. 2
1.2 Registration Statement ........................................ 2
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ARTICLE II
CLOSING
2.1 Time and Place ................................................ 2
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2.2 Actions at the Closing ........................................ 2
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2.3 .................................................................... 2
Simultaneous Actions ................................................... 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OWHC AND OWE
3.1 Organization .................................................. 3
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3.2 Capitalization ................................................ 3
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3.3 Subsidiaries .................................................. 3
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3.4 Authority ..................................................... 3
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3.5 Financial Statements .......................................... 3
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3.6 Absence of Undisclosed Liabilities ............................ 4
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3.7 Absence of Changes ............................................ 4
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3.8 Title to Assets ............................................... 5
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3.9 Litigation .................................................... 5
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3.10 Compliance; Governmental Authorization ........................ 5
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3.11 Labor Relations; Employees .................................... 6
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3.12 Employee Benefit Plans ........................................ 6
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3.13 Intellectual Property ......................................... 6
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3.14 Accounts and Notes Receivable ................................. 7
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3.15 Loan Inventories .............................................. 7
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3.16 Tax Matters ................................................... 7
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3.17 Books and Records ............................................. 7
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3.18 Disclosure .................................................... 8
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3.19 Best Knowledge of OWHC and OWE ................................ 8
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MONOGENESIS
4.1 Organization .................................................. 8
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4.2 Authority ..................................................... 8
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4.3 Shareholders ...................................................... 8
ARTICLE V
COVENANTS OF OWHC AND OWE
5.1 Conduct of Business Until Closing Date ............................ 8
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5.2 Access to Properties and Records .................................. 9
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5.3 Advice of Changes ................................................. 9
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5.4 Conduct ........................................................... 9
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5.5 Approvals, Consents ............................................... 9
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ARTICLE VI
COVENANTS OF MONOGENESIS
6.1 Confidentiality; Return of Documents .............................. 10
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ARTICLE VII
CONDITIONS TO OBLIGATIONS OF MONOGENESIS
7.1 Accuracy of Representations and Warranties ........................ 10
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7.2 Performance of Agreements ......................................... 10
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7.3 Officer's Certificates ............................................ 10
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7.4 Secretary's Certificate ........................................... 10
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7.5 Consents, Authorizations .......................................... 11
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7.6 Legislation ....................................................... 11
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7.7 Issuance, Registration and Distribution of Shares and Warrants .... 11
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7.8 Good Standing Certificates ........................................ 11
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7.9 Financial Statements .............................................. 11
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7.10 Casualty .......................................................... 11
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ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF OWHC AND OWE
8.1 Accuracy of Representations and Warranties ........................ 12
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8.2 Performance of Agreements ......................................... 12
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8.3 Officer's Certificate ............................................. 12
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8.4 Secretary's Certificate ........................................... 12
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8.5 Consents, Authorizations .......................................... 12
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8.6 Legislation ....................................................... 12
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9.7 Issuance, Registration and Distribution of Shares and Warrants .... 12
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ARTICLE IX
TERMINATION
9.1 Termination ....................................................... 13
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ARTICLE X
INDEMNIFICATION
10.1 Indemnification ................................................................ 13
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10.2 Third Party Claims ............................................................. 14
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10.3 Remedies Cumulative ............................................................ 15
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10.4 Recoveries ..................................................................... 15
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ARTICLE XI
MISCELLANEOUS
11.1 Expenses; Transfer Taxes ....................................................... 15
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11.2 Binding Effect ................................................................. 15
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11.3 Entire Agreement; Amendments ................................................... 15
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11.4 Headings ....................................................................... 15
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11.5 Notices ........................................................................ 15
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11.6 Publicity ...................................................................... 16
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11.7 Governing Law .................................................................. 16
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11.8 Waivers ........................................................................ 16
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11.9 Defined Terms .................................................................. 16
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11.10 Fees ........................................................................... 17
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SCHEDULE 3.1
Officers and Directors of OWHC .......................................................... 18
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SCHEDULE 3.2
Stock of Ocean West Holding Corporation Assuming Exercise of the Monogenesis
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Warrants .................................................................. 18
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Convertible Securities, Options,Warrants, Agreements Relating to Stock of OWHC .......... 19
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SCHEDULE 3.3
Subsidiaries of OWHC
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SCHEDULE 3.12
Employee Benefit Plans .................................................................. 19
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SCHEDULE 3.13
Intellectual Property ................................................................... 19
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EXHIBIT 1.1
Form of Common Stock Purchase Warrants .................................................. 20
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EXHIBIT 3.5
Certificate Relating to Financial Statements OWHC ....................................... 20
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Certificate Relating to Financial Statements OWE ....................................... 21
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STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement (the "Agreement") is entered into as of
this ____ day of ________, 2002 by and among Ocean West Holding Corporation, a
Delaware corporation ("OWHC"); Ocean West Enterprises, Inc., dba Ocean West
Funding, a California corporation ("OWE"); and Monogenesis Corporation, a
Delaware corporation ("Monogenesis").
WHEREAS, Monogenesis is a closed-end investment company with in excess
of 1,000 shareholders which was formed to provide a mechanism for companies to
become reporting companies under the Securities Act of 1934 through
distributions to its shareholders;
WHEREAS, OWHC desires to have a class of shares which may be traded
publicly to facilitate access to equity capital and future acquisitions and to
provide liquidity for its shareholders and value to employee stock incentive
programs;
WHEREAS, OWHC has four classes of stock authorized: Common Shares,
Class B Common Shares, Class D Common Shares and Preferred Shares and will
authorize the issuance of the common stock purchase warrants described below;
WHEREAS, as of April 15, 2002, OWHC had authorized 30,000,000 Common
Shares, 5,196,304 of which were issued and outstanding; 5,000,000 Class B Common
Shares, 210,096 of which were issued and outstanding; 600,000 Class D Common
Shares, none of which were issued and outstanding; and 10,00,000 Preferred
Shares, of which 1,000 shares of Series C, 680 shares of Series E, 1,050 of
Series F, 2,000 of Series G, 125 of Series I, and 1,000 of Series L were issued
and outstanding;
WHEREAS, Monogenesis has received warrants to purchase 88,800 Common
Shares of OWHC;
WHEREAS, OWHC will authorize Common Stock Purchase Warrants (the
"Warrants") to purchase Common Shares of OWHC (which Warrants will be
exercisable for 10 months and have an exercise price of $1.25 per share);
WHEREAS, prior to the Closing Date (as hereinafter defined),
Monogenesis will purchase, and OWHC will issue to Monogenesis, 300,000 of its
Common Shares at a purchase price of $0.01 per share together with 3,000,000
Warrants at a purchase price of $0.001 per Warrant;
WHEREAS, OWHC will file a registration statement (the "Registration
Statement") registering 2,247,676 of the Common Shares held by shareholders of
OWHC, all of the Common Shares which may be issued to Monogenesis upon the
exercise of its warrants (including Common Shares received upon conversion of
Class B Common Shares), all of the Common Shares and all of the Warrants to be
issued to Monogenesis and all of the Common Shares underlying the Warrants
pursuant to the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, on the Closing Date, Monogenesis will authorize its transfer
agent to distribute to Monogenesis shareholders 100 Common Shares of OWHC and
1,000 Warrants of OWHC for each share of stock of Monogenesis held;
NOW THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, the parties agree as follows:
ARTICLE I
SECURITIES
1.1 Issuance of Securities to Monogenesis. OWHC shall issue to
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Monogenesis 300,000 Common Shares upon receipt of the purchase price of $0.01
per share and 3,000,000 Warrants (in substantially the form attached hereto as
Exhibit 1.1) upon receipt of the purchase price of $0.001 per Warrant.
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1.2 Registration Statement. OWHC shall prepare and file the
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Registration Statement pursuant to the 1933 Act registering a total of 5,196,304
Common Shares and 3,000,000 Warrants, which constitute 1,858,876 of the
5,247,676 Common Shares held by shareholders of OWHC (other than Monogenesis),
the 300,000 Common Shares and 3,000,000 Warrants to be issued to Monogenesis,
the 88,800 Common Shares underlying the Monogenesis warrants (including Common
Shares to be received upon conversion of the Class B Common Shares) and the
3,000,000 Common Shares underlying the Warrants. The shareholders shall receive
the registered shares as indicated on Schedule 3.2.
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ARTICLE II
CLOSING
2.1 Time and Place. The closing of the transactions contemplated by
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this Agreement (the "Closing") shall take place at the place and on such date
and at such time within ten business days after the date on which all of the
conditions set forth in Articles VII and VIII to each party's obligations
hereunder have been satisfied or waived, as set forth in a written notice from
Monogenesis at least five business days prior thereto; or on such other date and
at such other time and place as OWHC and Monogenesis may mutually agree. The
date on which the Closing actually occurs is herein referred to as the "Closing
Date."
2.2 Actions at the Closing. At the Closing, Monogenesis shall
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deliver to OWHC and OWHC shall deliver to Monogenesis, the shares to be received
upon exercise of the warrants in accordance with their terms. Monogenesis shall
deliver the certificates representing all of the issued and outstanding warrants
of OWHC held by it in negotiable form or together with completed and executed
assignments and the exercise price of the warrants. Upon receipt of such
warrants, OWHC shall prepare and deliver certificates representing the shares to
be received upon exercise of the warrants.
2.3 Simultaneous Actions. All proceedings to be taken and all
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documents to be executed and delivered by the parties at the Closing shall be
deemed to have been taken and executed simultaneously and no proceedings shall
be deemed taken nor any documents executed or delivered until all have been
taken, executed and delivered.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OWHC AND OWE
OWHC and OWE represent and warrant to Monogenesis, all of which
representations and warranties shall be true on the Closing Date and shall
survive the Closing, that:
3.1 Organization. OWHC is a corporation duly organized, validly
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existing and in good standing under the laws of the State of Delaware and has
the power to own its property and carry on its business as it is now being
conducted. OWHC is duly qualified and in good standing to do business in every
jurisdiction in which such qualification is necessary. Copies of the Certificate
of Incorporation and the Bylaws of OWHC, which have been furnished to
Monogenesis, are true and correct copies of said documents including all
amendments to the date hereof. The offices and directors of OWHC are listed on
Schedule 3.1.
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3.2 Capitalization. OWHC has authorized 30,000,000 Common Shares,
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par value$.01 per share; 5,000,000 Class B Common Shares, par value$.01 per
share; 600,000 Class D Common Shares, par value$.01 per share; and 10,00,000
Preferred Shares, par value$.01 per share. Of such shares, including the shares
to be issued to Monogenesis, 5,585,104 Common Shares, 210,096 Class B Common
Shares, no Class D Common Shares and 5,855 Preferred Shares, made up of 1,000
shares of Series C, 680 shares of Series E, 1,050 of Series F, 2,000 of Series
G, 125 of Series I, and 1,000 of Series L, will be issued and outstanding on the
Closing Date and have been and will be duly authorized, validly issued, fully
paid and nonassessable. A list of all shareholders of OWHC and the number and
class of shares held by each such shareholder is included on Schedule 3.2.
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Except for the warrants issued to Monogenesis and as set forth on Schedule 3.2
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hereto and described herein, there is no: (i) outstanding security convertible
into or exchangeable for the Common Shares of OWHC; (ii) option, warrant, put,
call or other right to purchase or subscribe to Common Shares of OWHC; or (iii)
contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance or disposition of Common Shares of OWHC or the issuance
or disposition of any security convertible into Common Shares of OWHC. OWHC's
records reflect the ownership of all issued and outstanding shares of its stock.
3.3 Subsidiaries. OWHC has the subsidiaries listed on Schedule 3.3.
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3.4 Authority. OWHC has full power to execute and perform this
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Agreement. The execution and delivery of this Agreement has been duly authorized
by all necessary corporate and other actions. Neither the execution nor delivery
of this Agreement nor the performance, observation or compliance with its terms
and conditions will violate any provision of law, any order of court or other
governmental agency, the Certificate of Incorporation or Bylaws of OWHC, or any
indenture, agreement or other instrument to which OWHC is a party, or by which
it is bound or by which any of its property is bound. No consent to the
performance, observation or compliance with the terms and conditions of this
Agreement by OWHC is required from any third party.
3.5 Financial Statements. OWHC and OWE have provided Monogenesis
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with true and complete copies of the following (collectively, the
"Financial Statements"):
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(a) the audited balance sheets of OWE as of March 31, 2000, 1999, 1998
and 1997, and the related audited statements of earnings and retained earnings
and cash flow for the fiscal years then ended, and notes related thereto;
(b) the audited balance sheets of OWHC as of March 31, 2000, and the
related audited statements of earnings and retained earnings and cash flow for
the portion of the year then ended, and notes related thereto;
(c) the unaudited balance sheet (the "Balance Sheet") of OWE as of
December 31, 2001 (the "Balance Sheet Date") and the related unaudited statement
of earnings for the nine months then ended, prepared by OWE and accompanied by a
certificate in the form of Exhibit 3.5 hereto executed by the persons indicated
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on said Exhibit; and
(d) the unaudited balance sheet (the "Balance Sheet") of OWHC as of
December 31, 2001 (the "Balance Sheet Date") and the related unaudited statement
of earnings for the nine months then ended, prepared by OWHC and accompanied by
a certificate in the form of Exhibit 3.5 hereto executed by the persons
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indicated on said Exhibit.
The Financial Statements either eliminate or clearly disclose all transactions
between OWHC, OWE, the shareholders and their affiliates. Except as otherwise
noted in the Financial Statements, the Financial Statements are complete and
present fairly the financial position of OWHC and OWE and the results of their
operations as of the dates thereof and for the periods covered thereby in
conformity with generally accepted accounting principles applied on a consistent
basis.
3.6 Absence of Undisclosed Liabilities. To the Best Knowledge (as
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defined in Section 3.19 below) of OWHC and OWE, at the Balance Sheet Date (i)
neither OWHC nor OWE had any liabilities or obligations of any nature (matured
or unmatured, fixed or contingent) which were not provided for or disclosed on
the Balance Sheet, (ii) all reserves and allowances provided on the Balance
Sheet were adequate for the purposes indicated therein and (iii) there were no
loss contingencies (as such term is used in Statement of Financial Accounting
Standards No. 5 issued by the Financial Accounting Standards Board (FASB)) which
were not adequately provided for in the Balance Sheet.
3.7 Absence of Changes. Since the Balance Sheet Date, OWHC's and
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OWE's business has operated in the ordinary course and there has not been (i)
any adverse change in its condition (financial or otherwise), assets,
liabilities, earnings or business; (ii) any obligation or liability (whether
absolute, accrued, contingent or otherwise and whether due or to become due)
incurred, or any transaction, contract or commitment entered into, other than
items incurred or entered into (as the case may be) in the ordinary course of
the business; (iii) any amendment or termination of a material contract,
license, lease, commitment or other agreement to which OWHC or OWE are a party,
except in the ordinary course of business and consistent with past practice;
(iv) any license, sale, transfer, pledge, mortgage or other disposition of any
tangible or intangible asset or Intellectual Property (as defined in Section
3.13 below) except sales of mortgages or other property in the ordinary course
of business and consistent with past practice; (v) any failure to operate its
business in the ordinary course consistent with past practice, including, but
not limited to, any failure to make capital expenditures or investments
necessary to continue
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business in the ordinary course or any failure to pay trade accounts payable
when due; or (vi) any dividend or other distribution declared or paid or any
change in its outstanding capital stock except as disclosed to Monogenesis.
3.8 Title to Assets. OWE has good and marketable title to all of its
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assets, free and clear of all mortgages, liens, pledges, charges, security
interests, rights of way, options, rights of first refusal, conditions,
restrictions or encumbrances of any kind or character, whether or not relating
to the extension of credit or the borrowing of money (collectively,
"Encumbrances"), except for (i) the Encumbrances disclosed in the Financial
Statements and (ii) liens for taxes and governmental charges not yet payable
without penalty. There is no asset used or required by OWE in the conduct of its
business which is not either owned by it or licensed or leased to it.
3.9 Litigation. Except as disclosed in the Registration Statement,
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there are no (i) audits, inspections, actions, suits, claims, investigations or
legal, administrative or arbitration proceedings pending or threatened against
OWHC or OWE, whether at law or in equity, whether civil or criminal in nature or
whether before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, nor, to the Best Knowledge of OWHC and OWE, does any basis exist
therefor or (ii) judgments, decrees, injunctions or orders of any court,
governmental department, commission, agency, instrumentality or arbitrator
against OWHC or OWE.
3.10 Compliance; Governmental Authorization. (a) OWHC and OWE
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have complied with all federal, state, territorial, local or foreign laws,
ordinances, regulations or orders applicable to its business or assets,
including, by way of description, and not limitation, matters relating to the
environment, anti-competitive practices, discrimination, employment, health and
safety, taxes, issuance of securities, customs duties and requirements and
foreign practices. OWHC and OWE have all federal, state, territorial, local and
foreign governmental licenses and permits necessary in the conduct of their
business as presently conducted, which licenses and permits are in full force
and effect, and no violations are outstanding or uncured with respect to any
such licenses or permits and no proceeding is pending or threatened to revoke or
limit any of them. Such licenses, consents and permits shall not be affected in
any respect by the transactions contemplated hereby.
(b) As used in this Agreement, "Hazardous Substance" shall
mean and include all hazardous or toxic substances, wastes or materials, any
pollutants or contaminants (including, without limitation, all oil and petroleum
of any kind and in any form, asbestos and raw materials which include hazardous
constituents), or any other similar substances, or materials which are included
under or regulated by any applicable local, state, federal or foreign law, rule
or regulation pertaining to environmental regulation, contamination, clean-up or
disclosure, including, without limitation, the Clean Air Act, the Federal Water
Pollution Control Act, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of
1986, the Resource Conservation and Recovery Act of 1976, the Toxic Substances
Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, the
Occupational Safety and Health Act, the Emergency Planning and Community
Right-to-Know Act of 1986, and all comparable applicable state or local laws,
orders and regulations, as any of the foregoing has heretofore been amended.
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(c) OWHC and OWE hereby warrant to Monogenesis that OWHC, OWE and the
supervisory employees, officers and directors of OWHC and OWE have no knowledge
of the presence, storage, disposition, generation, treatment, release or
discharge of any Hazardous Substance on, under or about the assets owned by OWHC
and OWE or the land and buildings on and in which OWHC and OWE currently conduct
or previously conducted their operations except in accordance with applicable
laws.
3.11 Labor Relations; Employees. OWHC and OWE are in compliance with all
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applicable federal, state, territorial, local and foreign laws and regulations
respecting labor, employment and employment practices, terms and conditions of
employment and wages and hours. There is no unfair labor practice complaint
against OWHC or OWE pending before any state, local or foreign agency. There is
no labor strike, dispute, slowdown, stoppage or organizational effort or similar
activity actually pending or, to the Best Knowledge of OWHC or OWE, threatened
involving OWHC or OWE; no representation question exists respecting the
employees of OWHC or OWE; and no collective bargaining agreement presently
covers any employees of OWHC or OWE, nor is any currently being negotiated.
3.12 Employee Benefit Plans. Schedule 3.12 attached hereto lists all
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"employee pension benefit" plans (as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), all "employee
welfare benefit" plans (as defined in Section 3(1) of ERISA) and any other
qualified or non-qualified plans, programs or letters of commitment promising
current or future benefits or deferred compensation (individually, a "Plan" and,
collectively, the "Plans") maintained by OWHC or OWE. All Plans which are
"employee pension benefit" plans are so indicated on Schedule 3.12. All reports,
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statements, returns and other information required to be furnished or filed with
respect to the Plans have been furnished or filed, or both, and all required
records have been maintained. There are no actions, suits or claims pending, or
to the Best Knowledge of OWHC or OWE, threatened against, involving or affecting
any Plan. Neither OWHC nor OWE have any material liability, civil or criminal,
under any provision of ERISA or any other applicable statute or rule of law with
respect to the Plans. There are no violations of the health care continuation
coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA") with respect to employees of OWHC or OWE or any
qualified beneficiaries of such employees.
3.13 Intellectual Property. Set forth on Schedule 3.13 is a list and a
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brief description or identification of all material intellectual property rights
owned, leased or licensed by OWHC or OWE or used in connection with their
business, including without limitation all patents, patent applications, trade
names, fictitious or assumed names, trademarks, trademark applications, service
marks, service ▇▇▇▇ applications, copyrights, copyright applications, patterns,
inventions, trade secrets, proprietary processes and formulae, license
agreements, and all other similar proprietary rights, whether patentable or
unpatentable (collectively, the "Intellectual Property"). Except only as set
forth on Schedule 3.13, neither OWHC nor OWE is a licensor or licensee in
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respect of any Intellectual Property which is material to their business. OWHC
and OWE own or possess adequate licenses or other rights to use all Intellectual
Property necessary to conduct their business as now operated and all of such
Intellectual Property is owned outright by OWHC or OWE except as is otherwise
specifically noted on Schedule 3.13. To the Best Knowledge of OWHC and OWE,
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there is no infringement, misappropriation or other misuse being made by any
other party of the Intellectual Property. No claim is pending or threatened to
the effect that the present or past operations of OWHC or OWE infringe or
conflict with the asserted rights of others in
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respect of any Intellectual Property, and no claim is pending or threatened to
the effect that any of such Intellectual Property is invalid or unenforceable.
3.14 Accounts and Notes Receivable. Except as otherwise reflected in the
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Financial Statements, all unpaid accounts and notes receivable outstanding at
the date hereof constitute, and those outstanding at the Closing Date will
constitute, valid and enforceable claims arising in bona fide transactions in
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the ordinary course of business, except as enforceability is limited by
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or similar laws affecting the enforcement of creditors rights
generally. Except as described in the Financial Statements, there is (i) no
account or note debtor who has refused or threatened to refuse to pay its
obligations or who has or threatened to set-off such obligations for any reason,
(ii) no account or note debtor who is to OWHC's or OWE's Best Knowledge
insolvent or bankrupt and (iii) no account or note receivable pledged to any
third party. The reserves and allowances provided for on the Balance Sheet have
been established on the basis of historical experience in accordance with
generally accepted accounting principles. To the Best Knowledge of OWHC and OWE,
no material customer of OWHC or OWE is currently a debtor in any proceeding
under the Federal Bankruptcy Code, a state insolvency law or other similar law.
3.15 Loan Inventories. The loan inventories of OWE are, and at the Closing
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Date will be, (i) of a quantity which is reasonable in the circumstances of OWE;
and (ii) of a quality which is substantially similar to the historical quality
of OWE's inventory.
3.16 Tax Matters. For purposes of this Agreement, the term "Taxes" means
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all taxes of any kind or nature, including but not limited to federal, state,
local and foreign income taxes, withholding taxes, branch profit taxes, gross
receipts taxes, franchise taxes, sales and use taxes, business and occupation
taxes, property taxes, VAT, custom duties or imposts, stamp taxes, excise taxes,
payroll taxes, intangible taxes and capital taxes and any penalties or interest
thereon. OWHC and OWE have filed within the time and in the manner prescribed by
law all tax returns and reports required to be filed by them under the laws of
the United States and each state or other jurisdiction in which they conducts
business activities requiring the filing of tax returns or reports. OWHC and OWE
have paid or set up adequate reserves in the Balance Sheet in respect of all
Taxes. There are no tax liens, whether imposed by the United States, any state,
local, foreign or other taxing authority, outstanding against OWHC or OWE or
their assets. All Taxes and assessments that OWHC or OWE are required to
withhold or to collect have been duly withheld or collected and all withholdings
and collections have either been duly and timely paid over to the appropriate
governmental authorities or are, together with the payments due or to become due
in connection therewith, duly reflected on the Balance Sheet in accordance with
generally accepted accounting principles.
3.17 Books and Records. The books of account and other corporate financial
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records of OWHC and OWE are in all material respects complete and correct, have
been maintained in accordance with good business practices and matters contained
therein are appropriately and accurately reflected in the Financial Statements.
The corporate record books of OWHC and OWE contain true and complete copies of
the minutes of all meetings of their shareholders and directors.
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3.18 Disclosure. Neither this Agreement (including the Schedules and
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Exhibits attached hereto) nor any other document, certificate or statement
furnished to Monogenesis by or on behalf of OWHC or OWE in connection with the
transactions contemplated hereby, when considered in the aggregate with all
other such documents, certificates or statements, contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements contained herein and therein not misleading.
3.19 Best Knowledge of OWHC and OWE. OWHC and OWE represent and warrant
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that each time a representation and warranty is based on "Best Knowledge" that
the officers of OWHC and OWE have made a duly diligent investigation and
inquiry.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MONOGENESIS
Monogenesis represents and warrants, all of which representations and
warranties shall be true on the Closing Date and shall survive the Closing,
that:
4.1 Organization. Monogenesis is a corporation duly organized, validly
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existing and in good standing under the laws of the State of Delaware and has
the corporate power to carry on its business as it is now being conducted.
4.2 Authority. Monogenesis has the full power to execute and perform this
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Agreement. The execution and delivery of this Agreement has been duly authorized
by all necessary corporate and other actions. Neither the execution nor delivery
of this Agreement nor the performance, observance or compliance with its terms
and conditions will violate any provision of law, any order of court or other
governmental agency, the Certificate of Incorporation or Bylaws of Monogenesis
or any indenture, agreement or other instrument to which Monogenesis is a party,
or by which it is bound. No consent to the performance, observation or
compliance with the terms and conditions of this Agreement by Monogenesis is
required from any third party.
4.3 Shareholders. Monogenesis has in excess of 1,000 shareholders.
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ARTICLE V
COVENANTS OF OWHC AND OWE
OWHC and OWE hereby covenant and agree with Monogenesis as follows:
5.1 Conduct of Business Until Closing Date. Except as permitted or
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required hereby or as Monogenesis may otherwise consent in writing, between the
date hereof and the Closing Date, OWHC and OWE shall:
(a) operate their business only in the usual, regular and ordinary
manner as such business was conducted prior to the Balance Sheet Date and, to
the extent consistent with such operation, use their best efforts to (i)
preserve the present business organization intact, (ii) keep available the
services
8
of the present employees, and (iii) preserve the present business relationship
with customers, suppliers and others having business dealings with them;
(b) maintain all properties necessary for the conduct of the business,
whether owned or leased, in substantially the same condition as they now are
(reasonable wear and tear which are not such as to materially adversely affect
operations and damage due to unavoidable casualty excepted);
(c) neither (i) encumber, mortgage or voluntarily subject to lien,
except for liens created pursuant to existing loan agreements or made in the
ordinary course of business, any of the properties or assets, (ii) convey,
transfer or acquire any material asset or property other than in the ordinary
course of business, nor (iii) except in the ordinary course of business, incur
any material fixed or contingent obligation or enter into any material
agreement, commitment or other transaction or arrangement; and
(d) neither declare, set aside, pay or make any dividend or other
distribution or payment on or in respect of shares of its stock, nor directly or
indirectly redeem, retire, purchase or otherwise acquire any of its stock.
5.2 Access to Properties and Records. OWHC and OWE shall give to
--------------------------------
Monogenesis and its representatives reasonable access during normal business
hours to OWHC's and OWE's properties, personnel, books, tax returns, contracts,
commitments and records and the right to make copies thereof. OWHC and OWE shall
furnish to Monogenesis and such representatives all such additional documents
and financial and other information as Monogenesis or its representatives may
from time to time reasonably request and permit Monogenesis and such
representatives to examine all records and working papers relating to the
preparation, review and audits of OWHC's and OWE's financial statements and tax
returns.
5.3 Advice of Changes. Between the date hereof and the Closing Date, OWHC
-----------------
and OWE shall advise Monogenesis promptly in writing of any fact of which OWHC
or OWE become aware, which, if known at the date hereof, would have been
required to be set forth or disclosed in or pursuant to this Agreement.
5.4 Conduct. Except as permitted or required hereby or as OWHC or OWE may
-------
notify Monogenesis in writing, neither OWHC nor OWE shall enter into any
transaction, take any action, or fail to take any action, which would result in
any of the representations and warranties of either of them contained in this
Agreement or in any Schedule or Exhibit hereto not being true and correct at and
as of the time immediately after such transaction has been entered into or such
event has occurred and on the Closing Date.
5.5 Approvals, Consents. OWHC and OWE shall obtain in writing prior to the
-------------------
Closing Date all approvals, consents and waivers, required to be obtained by
either of them in order to effectuate the transactions contemplated hereby, and
shall deliver to Monogenesis copies thereof, reasonably satisfactory in form and
substance to Monogenesis.
9
ARTICLE VI
COVENANTS OF MONOGENESIS
Monogenesis hereby covenants and agrees with OWHC and OWE as follows:
6.1 Confidentiality; Return of Documents. Unless and until the transactions
------------------------------------
contemplated by this Agreement are consummated, Monogenesis shall keep in
confidence all proprietary and financial information of OWHC and OWE, and shall
not, except to the extent required by law or to the extent any such information
is otherwise publicly available, without the prior written consent of OWHC or
OWE, reveal any such financial or proprietary information to any third party
other than securities regulatory authorities in connection with the Registration
Statement or counsel, accountants or experts retained by Monogenesis who shall
be bound by the same restrictions. If the transactions contemplated by this
Agreement are not consummated, at OWHC's or OWE's request, Monogenesis shall
return to OWHC or OWE, as directed, all documents supplied to Monogenesis by
either of them pursuant to the provisions of this Agreement.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF MONOGENESIS
The obligation of Monogenesis to perform as provided in this Agreement is
subject to the satisfaction at or prior to the Closing Date of the following
conditions unless waived by Monogenesis in its sole discretion:
7.1 Accuracy of Representations and Warranties. The representations and
------------------------------------------
warranties of OWHC and OWE contained in this Agreement and in any Schedule or
Exhibit hereto shall be true and accurate in all material respects on and as of
the Closing Date, with the same force and effect as if made on the Closing Date,
except as affected by transactions required or permitted hereby, and except that
any such representation or warranty made as of a specified date (other than the
date of this Agreement) shall have been true and accurate in all material
respects on and as of such date.
7.2 Performance of Agreements. OWHC and OWE shall have performed and
-------------------------
complied with all covenants, obligations and agreements to be performed or
complied with, on or before the Closing Date pursuant to this Agreement or any
Schedule or Exhibit hereto.
7.3 Officer's Certificates. Monogenesis shall have received an accurate
----------------------
certificate of a duly authorized officer of OWHC and an accurate certificate of
a duly authorized officer of OWE, each dated the Closing Date, satisfactory in
form and substance to Monogenesis, certifying the fulfillment of the matters
specified in Sections 7.1 and 7.2.
7.4 Secretary's Certificate. Monogenesis shall have received an accurate
-----------------------
certificate of the Secretary of OWHC, dated the Closing Date, satisfactory in
form and substance to Monogenesis, with respect to the resolutions adopted by
the Board of Directors of OWHC approving this Agreement and the transactions
contemplated hereby.
10
7.5 Consents, Authorizations. All consents, authorizations, orders
------------------------
or approvals of, and filings or registrations with and the expiration of all
waiting periods imposed by, any third party, including, without limitation, any
federal, state or local commission, board or other regulatory body, lender,
lessor, licensor or supplier which are required for or in connection with the
execution and delivery of this Agreement by OWHC and OWE and the consummation of
the transactions contemplated hereby shall have been duly obtained or made and
shall be in full force and effect.
7.6 Legislation. No federal, state or local statute, rule or
-----------
regulation shall have been enacted after the date of this Agreement which
prohibits, restricts, delays or materially adversely affects the business of
OWHC or OWE or the consummation of the transactions contemplated by this
Agreement or any of the conditions to the consummation of such transactions. No
temporary restraining order or injunction shall be in effect, or threatened by a
governmental agency, restraining the consummation of the transactions
contemplated hereby.
7.7 Issuance, Registration and Distribution of Shares and Warrants.
--------------------------------------------------------------
OWHC shall have taken all steps necessary to issue the shares and Warrants in
accordance with this Agreement. Monogenesis shall have resolved to distribute to
each of its shareholders 100 Common Shares and 1,000 Warrants of OWHC to be
issued to Monogenesis for each share of stock of Monogenesis held by such
shareholder. The Registration Statement shall have been filed registering
2,247,676 of the Common Shares held by shareholders of OWHC, all of the Common
Shares to be issued to Monogenesis, all of the Warrants and all of the Common
Shares underlying the Warrants, and such Registration Statement shall have
become effective.
7.8 Good Standing Certificates. Monogenesis shall have received
--------------------------
certificates acceptable to it from the Secretary of State of the jurisdictions
in which OWHC is incorporated, certifying that OWHC is in good standing under
the laws of such jurisdiction and a certified copy of the Certificate of
Incorporation of OWHC and all amendments.
7.9 Financial Statements. Monogenesis shall have received the
--------------------
unaudited balance sheets of OWHC and OWE as of the quarter-end immediately
preceding the Closing Date (or the prior quarter-end if the Closing occurs
within thirty-five days of the end of a quarter), and the related unaudited
statements of earnings, retained earnings and cash flows for the portion then
ended, presented on a comparative basis with financial statements of the same
portion of the preceding fiscal year, prepared by OWHC and OWE and accompanied
by a certificate in the form of Exhibit 3.5 attached hereto executed by the
-----------
persons indicated on said Exhibit. Such statements shall not differ from those
for the comparable period of the preceding fiscal year in any materially adverse
respect.
7.10 Casualty. There shall have not occurred any fire, flood,
--------
earthquake or other casualty to assets of OWE resulting in a cost of repair or
replacement of more than $25,000 in excess of applicable insurance coverage.
11
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF OWHC AND OWE
The obligation of OWHC and OWE to perform their obligations under this
Agreement is subject to the satisfaction at or prior to the Closing Date of the
following conditions unless waived by OWHC and OWE in their sole discretion:
8.1 Accuracy of Representations and Warranties. The representations
------------------------------------------
and warranties of Monogenesis contained in this Agreement or in any Schedule or
Exhibit hereto shall be true and accurate in all material respects on and as of
the Closing Date, with the same force and effect as if made on the Closing Date,
except as affected by transactions required or permitted hereby, and except that
any such representation or warranty made as of a specified date (other than the
date of this Agreement), shall have been true and accurate in all material
respects on and as of such date.
8.2 Performance of Agreements. Monogenesis shall have performed and
-------------------------
complied in all material respects with all covenants, obligations and agreements
to be performed or complied with by it on or before the Closing Date pursuant to
this Agreement or any Schedule or Exhibit hereto.
8.3 Officer's Certificate. OWHC and OWE shall have received an
---------------------
accurate certificate, dated the Closing Date, of a duly authorized officer of
Monogenesis, satisfactory in form and substance to OWHC and OWE, certifying as
to the fulfillment of the matters specified in Sections 8.1 and 8.2.
8.4 Secretary's Certificate. OWHC and OWE shall have received an
-----------------------
accurate certificate, dated the Closing Date, of the Secretary of Monogenesis,
satisfactory in form and substance to OWHC and OWE, with respect to the
resolutions adopted by the Board of Directors of Monogenesis approving this
Agreement and the transactions contemplated hereby.
8.5 Consents, Authorizations. All consents, authorizations, orders
------------------------
or approvals of, and filings or registrations with, and the expiration of all
waiting periods imposed by any third party, including without limitation, any
federal, state or local commission, board or other regulatory body which are
required for or in connection with the execution and delivery by Monogenesis of
this Agreement and the consummation by Monogenesis of the transactions
contemplated hereby shall have been obtained or made and shall be in full force
and effect.
8.6 Legislation. No federal, state or local statute, rule or
-----------
regulation shall have been enacted after the date of this Agreement which
prohibits, restricts, delays or materially adversely affects the consummation of
the transactions contemplated by this Agreement or any of the conditions to the
consummation of such transactions. No temporary restraining order or injunction
shall be in effect, or threatened by a governmental agency, restraining the
consummation of the transactions contemplated hereby.
9.7 Issuance, Registration and Distribution of Shares and Warrants.
--------------------------------------------------------------
OWHC shall have taken all steps necessary to issue the shares and Warrants to
Monogenesis in accordance with this Agreement. Monogenesis shall have resolved
to distribute to each of its shareholders 100 Common Shares
12
and 1,000 Warrants of OWHC to be issued to Monogenesis for each share of stock
of Monogenesis held by such shareholder. The Registration Statement shall have
been filed registering 2,247,676 of the Common Shares held by the shareholders
of OWHC, all of the Common Shares to be issued to Monogenesis, all of the
Warrants and all of the Common Shares underlying the Warrants, and such
Registration Statement shall have be become effective.
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated at any time prior
-----------
to the Closing Date:
(a) by OWHC, OWE or Monogenesis at any time after ___________,
2002; provided, however, that if the Registration Statement has not become
effective and Monogenesis is diligently pursuing the registration of the Shares
then Monogenesis may extend such date beyond _________, 2002 to a date within
ten business days of the effective date, but not later than ___________, 2002;
(b) by Monogenesis, if the after tax earnings of OWE do not
equal an average of $________ per month for the period beginning immediately
after the end of the last fiscal year and ending on the day prior to the
effective date of the Registration Statement;
(c) by Monogenesis, if there has been a violation or breach
by OWHC or OWE of any material agreement, representation or warranty of either
of them contained in this Agreement and such violation or breach has not been
waived by Monogenesis, or, with respect to a violation or breach of an
agreement, cured within ten business days after the receipt of written notice
thereof; or
(d) by OWHC or OWE, if there has been a violation or breach
by Monogenesis of any material agreement, representation or warranty of
Monogenesis contained in this Agreement and such violation or breach has not
been waived by OWHC and OWE or, with respect to a violation or breach of an
agreement, cured within ten business days after the receipt of written notice
thereof.
In the event of termination of this Agreement and abandonment of the
transactions contemplated hereby pursuant to this Section 9.1, written notice
thereof shall immediately be given to the other party and this Agreement shall
terminate and the transactions contemplated hereby shall be abandoned, without
further action by any of the parties hereto. The provisions of Sections 6.1,
10.1 and 10.2 shall survive any such termination.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification. (a) OWHC and OWE shall, jointly and severally,
---------------
indemnify, defend and save Monogenesis harmless from, against, for and in
respect of the following: (i) any damages, losses, obligations, liabilities,
claims, actions or causes of action sustained or suffered by Monogenesis and
arising from a breach of any representation, warranty, covenant or agreement of
OWHC or OWE contained in or made pursuant to this Agreement (including the
Schedules and Exhibits attached hereto), or in any
13
certificate, instrument or agreement delivered by OWHC or OWE pursuant hereto or
in connection with the transactions contemplated hereby; and (ii) all reasonable
costs and expenses (including, without limitation, reasonable fees and expenses
of attorneys, accountants and other professionals) incurred by Monogenesis in
connection with any action, suit, proceeding, demand, investigation, assessment
or judgment incident to any of the matters indemnified against under this
Section 10.1(a). Monogenesis shall not bring a claim, demand, suit or cause of
action against OWHC or OWE under or pursuant to this Section 10.1(a) with
respect to the representations and warranties set forth herein unless
Monogenesis has first given OWHC and OWE written notice, with reasonable
specificity, of the existence of any such claim, demand, suit or cause of action
under this Agreement. Upon the giving of such written notice as aforesaid,
Monogenesis shall have the right, in addition to all other remedies available to
it, to commence legal proceedings for the enforcement of its rights under this
Agreement. Monogenesis, at its option and with at least two days advance notice
to the affected party, may recover any such liability by set off against
payments otherwise required to be made by Monogenesis to such party pursuant to
any agreement between Monogenesis and such party.
(b) Monogenesis shall indemnify, defend and save OWHC and
OWE harmless from, against, for and in respect of the following: (i) any
damages, losses, obligations, liabilities, claims, actions or causes of action
sustained or suffered by OWHC or OWE and arising from a breach of any
representation, warranty, covenant or agreement of Monogenesis contained in or
made pursuant to this Agreement or in any certificate, instrument or agreement
delivered by it pursuant hereto or in connection with the transactions
contemplated hereby; and (ii) all reasonable costs and expenses (including,
without limitation, reasonable fees and expenses of attorneys, accountants and
other professionals) incurred by OWHC or OWE in connection with any action,
suit, proceeding, demand, investigation, assessment or judgment incident to any
of the matters indemnified against under this Section 10.1(b). Neither OWHC nor
OWE shall bring a claim, demand, suit or cause of action against Monogenesis
under or pursuant to this Section 10.1(b) unless such party has first given
Monogenesis written notice, with reasonable specificity, of the existence of any
such claim, demand, suit or cause of action under this Agreement. Upon the
giving of such written notice as aforesaid, such party shall have the right, in
addition to all other remedies available to it, to commence legal proceedings
for the enforcement of its rights under this Agreement.
10.2 Third Party Claims. With respect to claims resulting from the
------------------
assertion of liability by third parties, the obligations and liabilities of the
party responsible for indemnification (the "Indemnifying Party") hereunder with
respect to indemnification claims by the party entitled to indemnity (the
"Indemnified Party") shall be subject to the following terms and conditions: (i)
the Indemnified Party shall give prompt written notice to the Indemnifying Party
of any assertion of liability by a third party which might give rise to a claim
by the Indemnified Party against the Indemnifying Party based on the indemnity
agreements contained in Section 10.1 hereof, stating the nature and basis of
said assertion and the amount thereof, to the extent known; and (ii) the
Indemnifying Party shall not make any settlement of any claims without the
written consent of the Indemnified Party; provided, however, that if an
Indemnified Party does not consent to a settlement proposed by the Indemnifying
Party and accepted by the adverse third party, the liability of the Indemnifying
Party shall be limited to the amount that would have been paid in such
settlement.
14
10.3 Remedies Cumulative. The remedies provided for in this Article X
-------------------
shall be cumulative and shall not preclude assertion by the Indemnified Party of
any other rights or the seeking of any other remedies against the Indemnifying
Party.
10.4 Recoveries. In the event an Indemnified Party subsequently
----------
receives payment (including without limitation proceeds of insurance and
payments on accounts receivable) with respect to a matter for which it has been
fully indemnified by the Indemnifying Party, the Indemnified Party shall
promptly pay the amount of such payment up to the indemnification received, to
the Indemnifying Party.
ARTICLE XI
MISCELLANEOUS
11.1 Expenses; Transfer Taxes. All fees, costs and expenses incurred
------------------------
by OWHC, OWE, or Monogenesis in connection with, relating to or arising out of
the preparation, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, including, without
limitation, fees of the transfer agent and legal and accounting fees and
expenses relating to the preparation and filing of the Registration Statement,
shall be borne by OWE.
11.2 Binding Effect. This Agreement shall become binding and
--------------
effective when executed by the parties hereto. This Agreement shall not be
assignable by any party without the prior written consent of the other parties,
except that without relieving Monogenesis of any of its obligations under this
Agreement, Monogenesis may assign this Agreement to any of its affiliates.
Subject to the foregoing, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the respective successors, heirs, legal
representatives and assigns of the parties hereto. This Agreement constitutes an
agreement among the parties hereto and none of the agreements, covenants,
representations or warranties contained herein shall be for the benefit of any
third party not a party to this Agreement.
11.3 Entire Agreement; Amendments. This Agreement (including the
----------------------------
Schedules and Exhibits attached hereto) contains the entire understanding of the
parties with respect to its subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof. This Agreement may be amended only by a written instrument duly
executed by the parties, and any condition to a party's obligations hereunder
may only be waived in writing by such party.
11.4 Headings. The article and section headings contained in this
--------
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.5 Notices. All notices, claims, certificates, requests, demands
-------
and other communications hereunder shall be in writing and shall be deemed given
if delivered personally, if mailed (by registered or certified mail, return
receipt requested and postage prepaid), if sent by reputable overnight courier
service for next business day delivery, or if sent by facsimile transmission, as
follows:
15
if to OWHC or OWE, to: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Executive Officer
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial Officer
Ocean West Enterprises, Inc
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇▇
if to Monogenesis to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Monogenesis Corporation
Drawer ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ PLLC
1700 PNC Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such
communication shall be effective on the date of receipt (or, if received on a
non-business day, on the first business day after the date of receipt).
11.6 Publicity. The parties agree that, except as otherwise required by
---------
law, the issuance of any reports, statements or releases pertaining to this
Agreement or the transactions contemplated hereby is subject to mutual consent.
11.7 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of Delaware (without giving
effect to its laws regarding conflicts of law).
11.8 Waivers. Any provision of this Agreement may be waived only by a
-------
written instrument executed by the party to be charged with such waiver. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach.
11.9 Defined Terms. Throughout this Agreement various terms have been
-------------
defined by being enclosed in quotation marks, usually in parentheses, and used
with their initial letters capitalized. Unless the context otherwise requires,
such defined terms shall have their designated meaning whenever used in this
Agreement or any attached schedules.
16
11.10 Fees. If there is any litigation between the parties related to this
----
Agreement or the transactions contemplated by this Agreement, the prevailing
party shall be entitled to recover all reasonable costs and expenses (including,
without limitation, reasonable fees and expenses of attorneys, accountants and
other professionals).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date first above written.
Ocean West Holding Corporation
By: ______________________________________
Title: ______________________________________
Ocean West Enterprises, Inc.
By: ______________________________________
Title: ______________________________________
Monogenesis Corporation
By: ______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
17
SCHEDULE 3.1
Officers and Directors of OWHC
------------------------------
Name Office
---- ------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ President, Chief Executive Officer, Director
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Vice President, Chief Financial Officer,
Secretary, Treasurer, Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. Director
SCHEDULE 3.2
Stock of Ocean West Holding Corporation
---------------------------------------
Assuming Exercise of the Monogenesis Warrants
---------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Restricted Registered Class B
Common Common Common Preferred
Name Shares Shares Shares Shares
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,465,755 488,585 105,048 Series L-210
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,456,755 485,585 105,048 Series L-205
----------------------------------------------------------------------------------------------------------------------
Agape Foundation Trust 414,918 138,306 -0- -0-
----------------------------------------------------------------------------------------------------------------------
Cheyenne Properties, Inc. -0- 480,000 -0- -0-
----------------------------------------------------------------------------------------------------------------------
Monogenesis Corporation -0- 388,800 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. Jochen -0- 118,400 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. and ▇▇▇▇ ▇. Series E-680
▇▇▇▇▇▇▇▇ -0- 40,000 -0- Series F-1,050
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ -0- 29,920 -0- Series L-90
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ -0- 14,800 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Series I-125
-0- 10,000 -0- Series L-74
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ -0- 8,880 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -0- 5,920 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ -0- 5,920 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ -0- 5,920 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Custodian for Megan -0- 5,920 -0- -0-
▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Custodian for Madison -0- 5,920 -▇- -▇-
▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -0- 5,920 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ -0- 5,920 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇ -0- 2,960 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ -0- 2,960 -0- -0-
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ -0- 2,960 -0- -0-
----------------------------------------------------------------------------------------------------------------------
N ▇. ▇▇▇▇▇▇▇ -0- -0- -0- Series C-1,000
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ -0- -0- -0- Series G-2,000
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ -▇- -▇- -▇- ▇▇▇▇▇▇ ▇-▇▇▇
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ -0- -0- -0- Series L-45
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇ -0- -0- -0- Series L-76
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇ -0- -0- -0- Series L-200
----------------------------------------------------------------------------------------------------------------------
TOTAL 3,337,428 2,247,676 210,096 5,855
----------------------------------------------------------------------------------------------------------------------
Convertible Securities, Options,
--------------------------------
Warrants, Agreements Relating to Stock of OWHC
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1. Monogenesis Corporation warrants to purchase 600 shares of Common
Stock.
SCHEDULE 3.3
Subsidiaries of OWHC
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Ocean West Enterprises, Inc.
SCHEDULE 3.12
Employee Benefit Plans
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1. Premium Reduction Option Cafeteria Plan adopted in 1993.
2. Ocean West Enterprises, Inc. 401(k) Profit Sharing Plan and Trust
adopted in 1997.
SCHEDULE 3.13
Intellectual Property
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1. ▇▇▇▇▇▇ Mae DESKTOP UNDERWRITER(R)- software designed to facilitate the
electronic underwriting of mortgage loan applications.
2. ▇▇▇▇▇▇ ▇▇▇ GUIDE EXPRESS(R) by ADFINET - software containing the
electronic ▇▇▇▇▇▇ Mae Selling & Servicing Guides.
3. PowerPak - Origin Software Systems, Inc. processing software.
4. MAS90 - accounting software.
5. ADP PR software.
6. Fax Utility software.
EXHIBIT 1.1
Form of Common Stock Purchase Warrants
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See exhibit to Registration Statement.
EXHIBIT 3.5
Certificate Relating to Financial Statements OWHC
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FINANCIAL STATEMENTS CERTIFICATE
--------------------------------
The undersigned, President of Ocean West Holding Corporation (the
"Corporation"), certifies that:
1. The balance sheet of the Corporation as of _________________ and the
income statement of the Corporation for the period ending on ________________
(collectively, the "Financial Statements"), all as attached hereto and provided
in connection with the Stock Purchase Agreement among the Corporation, Ocean
West Enterprises, Inc. and Monogenesis Corporation dated _____________, 2002,
are complete and present fairly the financial position of the Corporation.
2. The undersigned is not aware of any matters which are not reflected on
such Financial Statements or which would make such Financial Statements
misleading in any manner.
Witness the signature of the undersigned as of this ____ day of
______________, 2002.
By: ___________________________________
Title: ___________________________________
Certificate Relating to Financial Statements OWE
------------------------------------------------
FINANCIAL STATEMENTS CERTIFICATE
--------------------------------
The undersigned, President of Ocean West Enterprises, Inc. (the
"Corporation"), certifies that:
1. The balance sheet of the Corporation as of _________________ and the
income statement of the Corporation for the period ending on ________________
(collectively, the "Financial Statements"), all as attached hereto and provided
in connection with the Stock Purchase Agreement among the Corporation, Ocean
West Holding Corporation and Monogenesis Corporation dated _____________, 2002,
are complete and present fairly the financial position of the Corporation.
2. The undersigned is not aware of any matters which are not reflected on
such Financial Statements or which would make such Financial Statements
misleading in any manner.
Witness the signature of the undersigned as of this ____ day of
______________, 2002.
By: _________________________________
Title: _________________________________