AGREEMENT AND PLAN OF MERGER
by and between
REXX ENVIRONMENTAL CORPORATION
and
TWG, INC.
Dated
December 9, 1999
To be Joined in by
REXX ACQUISITION CORP.
and
WHITESTONE ACQUISITION CORP.
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made and
entered into effective as of December 9, 1999, between REXX Environmental
Corporation, a New York corporation ("REXX"), and TWG, Inc., a New York
corporation ("TWGI") (REXX and TWGI are sometimes hereinafter individually
referred to as a "Party" and collectively as the "Parties").
PRELIMINARY STATEMENTS
REXX and TWGI desire to combine their respective businesses and
holdings through the merger of REXX with REXX Acquisition Corp., with REXX as
the surviving corporation. Pursuant to the Merger, each share of common stock of
REXX, par value $0.02 per share ("REXX Common Stock") outstanding at the
Effective Time (as defined in Article II) will be converted into the right to
receive one share of TWGI Common Stock, par value $0.02 per share ("TWGI Common
Stock"), as more fully provided herein. Unless otherwise defined, capitalized
terms shall have the meanings assigned in Section 1.09.
The Parties intend that the Merger constitute a tax-deferred
transaction for purposes of the Internal Revenue Code of 1986, as amended (the
"Code").
The respective Boards of Directors of REXX and TWGI have determined the
Merger, in the manner contemplated herein, to be desirable and in the best
interests of their respective companies and shareholders and, by resolutions
duly adopted, have approved and adopted this Agreement.
As soon as practicable after the execution of this Agreement, REXX
shall notice a meeting of its shareholders and in connection therewith submit to
its shareholders the Proxy Statement related to (i) the approval of the Merger
and (ii) the approval of the ▇▇▇▇▇▇▇ Sale.
Concurrent with the execution of this Agreement and as an inducement to
TWGI to enter into this Agreement, certain affiliates of REXX who are
shareholders, officers or directors are entering into Voting Agreements (as
hereinafter defined) to vote the shares of REXX Common Stock owned by such
persons to approve (i) the Merger, (ii) the ▇▇▇▇▇▇▇ Sale, and (iii) such other
actions as shall be necessary to effectuate the Merger (collectively the "Proxy
Actions").
A stock purchase agreement for the sale of REXX's wholly-owned
subsidiary, ▇▇▇▇▇▇▇ Contracting, Inc., to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(the "Buyers") has been executed and, subject to the approval of REXX's
shareholders, will be consummated prior to the Merger. In addition, all of the
issued and outstanding equity securities of Wilshire Holdings I, Inc. and
Wilshire Holdings II, Inc. will have been contributed to BJB Holdings Corp.,
which will subsequently merge with Whitestone Acquisition Corp., with BJB
Holdings Corp. as the surviving corporation as a wholly-owned subsidiary of
TWGI.
As of the date of this Agreement, Messrs. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ own in the aggregate all of the membership
interests in The Whitestone Group, LLC , 87% of the membership interests in
Wilshire Advisers, LLC and 75% of the membership interests in Wilshire Partners,
LLC. The Whitestone Group, LLC owns 65% of the membership interests in Wilshire
Investors, LLC, 100% of the membership interests in Wilshire Louisiana Advisers,
LLC and Wilshire New York Advisers II, LLC and 100% of the equity securities of
Whitestone Capital Markets, Inc. Prior to the Effective Time all membership
interests referenced above will be contributed to WI and WII, which will be
wholly-owned by Messrs. Sloane, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ who, in turn, will
contribute all of the outstanding equity securities of WI and WII to BJB
Holdings. BJB Holdings is and will remain as a wholly-owned subsidiary of TWGI.
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AGREEMENT
Now, therefore, in consideration of the premises and the mutual and
dependent promises hereinafter set forth, the Parties hereby agree as follows:
ARTICLE I
MERGER
Section 1.01 Creation of RAC. In order to effect the Merger, TWGI shall
cause RAC to be organized as a New York corporation, all of the issued and
outstanding capital stock of which shall be owned by TWGI. As soon as practical
following its organization, TWGI shall cause RAC to ratify, approve and adopt
this Agreement.
Section 1.02 The Merger. Subject to the terms and conditions of this
Agreement and in accordance with the Business Corporation Law of New York
("BCL"), at the Effective Time, RAC will be merged with and into REXX, the
separate existence of RAC will cease and REXX will continue as the Surviving
Corporation.
Section 1.03 Effect of the Merger. In addition to the effects set forth
in this Agreement, the Merger will have the effects set forth in Section 906(b)
of the BCL.
Section 1.04 Certificate of Incorporation and By-Laws; Name. At the
Effective Time, the Certificate of Incorporation and the By-Laws of REXX prior
to the Effective Time, including all amendments thereto made prior to the
Effective Time, will be the Certificate of Incorporation and the By-Laws of the
Surviving Corporation.
Section 1.05 Directors. The directors of RAC will continue as the
directors of the Surviving Corporation in accordance with the Certificate of
Incorporation of the Surviving Corporation until their successors are duly
elected or appointed and qualified or until their earlier death, resignation or
removal.
Section 1.06 Officers. The persons serving as officers of RAC prior to
the Effective Time will continue as the officers of the Surviving Corporation,
each to hold office in accordance with the Certificate of Incorporation of the
Surviving Corporation until their respective successors are duly elected or
appointed and qualified or until their earlier death, resignation or removal.
Section 1.07 Merger Consideration: Conversion of Securities. Conversion
and Exchange of REXX Common Stock; Fractional Share Interests; REXX Stock
Options.
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(a) At the Effective Time, except as provided in Section
1.07(b) below, each share of REXX Common Stock issued and outstanding
immediately prior to the Effective Time shall thereupon and thereafter, by
virtue of the Merger becoming effective and without any action on the part of
the holder thereof or any other person, be converted into the right of the
registered holder thereof immediately prior to the Effective Time (such
registered holder being hereinafter referred to as a "Record Holder") to receive
an equal number of shares of TWGI Common Stock, and if appropriate one
additional share of TWGI Common Stock to be paid in lieu of a fractional share
pursuant to Section 1.07(g) hereof.
(b) At the Effective Time, all shares of REXX Common Stock (i)
held as treasury stock by REXX, (ii) owned beneficially by REXX or any REXX
Subsidiary other than in a fiduciary capacity or in connection with a debt
previously contracted, or (iii) owned beneficially by TWGI or any subsidiary of
TWGI other than in a fiduciary capacity or in connection with a debt previously
contracted shall be cancelled, and no cash, stock or other property shall be
delivered in exchange therefor.
(c) After the Effective Time, each Record Holder shall
surrender the certificate(s) that immediately prior to the Effective Time
evidenced and represented REXX Common Stock ("Certificate(s)") to the exchange
agent to be selected by TWGI and which shall be reasonably acceptable to REXX
(the "Exchange Agent"), and each Record Holder shall be entitled upon such
surrender to receive in exchange therefor certificate(s) representing the number
of whole shares of TWGI Common Stock to which such Record Holder is entitled as
provided herein and one (1) additional share of TWGI Common Stock in exchange
for any fraction of a share of REXX Common Stock, as provided under Section
1.07(g) hereof. Within five (5) business days after the Effective Time, the
Exchange Agent shall transmit by U.S. Mail a notice and appropriate transmittal
materials to each Record Holder whose shares of REXX Common Stock shall have
been converted into TWGI Common Stock advising such holder of the effectiveness
of the Merger and the procedure for surrendering outstanding Certificates.
Promptly after receipt of properly completed transmittal materials, together
with the Certificates that formerly evidenced and represented the Record
Holders' shares of REXX Common Stock, the Exchange Agent shall deliver the
consideration to which such Record Holders are entitled pursuant to Sections
1.07(a) and (g) hereof, and the surrendered Certificates shall forthwith be
cancelled. The Exchange Agent shall not be obligated to deliver the
consideration to which any Record Holder is entitled as a result of the Merger
until such Record Holder shall have surrendered the Certificate(s) that formerly
evidenced and represented shares of REXX Common Stock outstanding immediately
prior to the Effective Time for exchange as provided in this Section 1.07(c). In
the case of lost or stolen certificates, the Exchange Agent may require such
Record Holder to execute a bond of the kind and amount it deems necessary or
appropriate to indemnify the Exchange Agent in a manner reasonably satisfactory
to it against all such claims, expenses and liabilities as may arise out of its
payment to such registered holder in the absence of the surrender of a
certificate. After the Effective Time, each Certificate that evidenced and
represented shares of REXX Common Stock outstanding immediately prior to the
Effective Time shall be deemed for all corporate purposes to evidence and
represent only the right of the Record Holder to receive the consideration
provided in Section 1.07(a) hereof, upon compliance with the provisions of this
Section 1.07(c), and shall evidence and represent no further interest of any
kind or nature whatsoever in REXX.
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(d) Until surrendered as provided in Section 1.07(c) hereof,
each Certificate shall be deemed for all purposes to evidence ownership of the
number of shares of TWGI Common Stock into which the shares represented by such
Certificate have been converted; however, no dividend or other distribution
payable with respect to the shares of TWGI Common Stock shall be paid to a
Record Holder until such shareholder surrenders his or her Certificate(s) for
exchange as provided in Section 1.07(c), at which time, subject to Section
1.07(g) below, such shareholder shall receive all dividends and distributions,
without interest thereon, previously payable but withheld from such shareholder
pursuant to this Section 1.07(d). Certificates surrendered for exchange by any
person constituting an "affiliate" of REXX for purposes of Rule 145(c) under the
Securities Act shall contain any legends required by applicable law.
(e) As of the Effective Time, the stock transfer books of REXX
shall be closed, and no transfers of REXX Common Stock by such holder shall
thereafter be made or recognized. On the Closing Date (as hereinafter defined),
REXX shall deliver to TWGI a certified copy of its list of shareholders as of
such date.
(f) In the event that prior to the Effective Time the
outstanding shares of REXX Common Stock shall have been increased, decreased, or
changed into or exchanged for a different number or kind of shares or securities
by reorganization, recapitalization, reclassification, stock dividend, stock
split, or other like change in capitalization, then an appropriate and
proportionate adjustment shall be made in the number and kind of shares of TWGI
Common Stock to be thereafter delivered pursuant to this Agreement.
(g) Notwithstanding any other provision hereof, each holder of
REXX Common Stock who would otherwise have been entitled to receive a fraction
of a share of TWGI Common Stock (after taking into account all Certificates
delivered by such shareholder and aggregating all such fractional interests)
shall receive one (1) additional share of TWGI Common Stock. No such holder
shall be entitled to dividends, voting rights or any other shareholder right in
respect of any fractional share.
(h) The holders of the REXX Common Stock shall not have the
rights to payment for their shares, as provided by Section 623 of the BCL,
pursuant to the provisions of Section 910 of the BCL.
(i) At the Effective Time, each REXX Option whether or not
exercisable, shall be converted into and become an option with respect to TWGI
Common Stock, and TWGI shall assume each REXX Option, in accordance with the
terms of the REXX plan and stock option agreement by which it is evidenced,
except that from and after the Effective Time, (i) TWGI and a committee of its
Board of Directors shall be substituted for REXX and a committee of its Board of
Directors (including, if applicable, the entire Board of Directors of REXX)
administering the REXX stock option plan, (ii) each REXX Option assumed by TWGI
may be exercised solely for TWGI Common Stock, (iii) the number of shares of
TWGI Common Stock subject to each REXX Option shall be equal to the number of
shares of REXX Common Stock subject to such REXX Option immediately prior to the
Effective Time and (iv) the per share exercise price to purchase shares of TWGI
Common Stock shall be equal to the per share exercise price under each REXX
Option. Notwithstanding the foregoing, TWGI shall not be obligated to issue any
fraction of a share of TWGI Common Stock upon the exercise of a REXX Option
subsequent to the Effective Time. As soon as reasonably practicable after the
Effective Time, TWGI shall register on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), shares of TWGI Common Stock which may
be acquired upon the exercise of the former REXX Option.
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(j) At the Effective Time, each share of common stock of
RAC, issued and outstanding at the Effective Time shall, by virtue of the Merger
and without any action on the part of the holder thereof, be converted into one
outstanding share of REXX Common Stock. From and after the Effective Time, each
outstanding certificate previously representing shares of RAC Common Stock shall
be deemed for all purposes to evidence ownership of and to represent the number
of shares of REXX Common Stock into which such shares of RAC Common Stock shall
have been converted.
Section 1.08 Creation of Whitestone Acquisition Corp.. In order to
effectuate the combination of the non-REXX interests in the transactions
contemplated by this Agreement, TWGI shall cause WAC to be organized. As soon as
practical following its organization, TWGI shall cause WAC to ratify, approve
and adopt this agreement.
Section 1.09. Definitions. As used in this Agreement, the following
terms have the following meanings; those defined in the singular shall have the
same meaning when used in the plural and vice versa.
Action means any suit at law or equity, claim, proceeding or
investigation.
Affiliated Person means, with respect to a party, any shareholder,
member, director, officer, employee, manager, representative, Related Party or
entity or person controlling, controlled by or under common control with such
party.
Applicable Laws means, with respect to a party, all laws, statutes,
ordinances, orders, rules, regulations, policies, and guidelines promulgated,
and all judgments, decisions and orders entered by any federal, state, local or
foreign court or governmental authority or instrumentality which are applicable
or relate to either TWGI or REXX, respectively, or their respective businesses
or properties.
BJB Holdings means BJB Holdings Corp., a New York corporation.
Closing and Closing Date shall have the meanings assigned to such terms
by Article II.
Contracts means all enforceable contracts, agreements, leases,
arrangements and understandings, written or oral.
Effective Date and Effective Time shall have the meanings assigned to
such terms by Article II.
Material Adverse Effect means any change in REXX or TWGI, as the
context indicates, involving or affecting the general business affairs,
financial condition, management, stockholders' equity or results of operations
of such company which, individually or in combination with other changes, is
both material and adverse.
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Merger means the combination of REXX and RAC pursuant to New York law
with REXX as the Surviving Corporation.
Proxy Actions means the proposals to be voted upon by the REXX
shareholders at the next meeting of shareholders with respect to the ▇▇▇▇▇▇▇
Sale and the Merger.
Proxy Statement means the document prepared by REXX and transmitted to
its shareholders in connection with the ▇▇▇▇▇▇▇ Sale and the Merger, as the same
shall be amended or supplemented.
RAC means REXX Acquisition Corp., a New York corporation to be at the
Effective Time wholly-owned by TWGI, created to effectuate the Merger.
RAC Common Stock means the common stock, no par value, of RAC.
Related Party means a current 5% or more shareholder, director,
officer, or any person related to such persons by blood or marriage.
REXX Options means those rights to purchase shares of REXX Common Stock
outstanding as of the Effective Time.
Surviving Corporation means REXX, the corporation resulting from the
combination of REXX and RAC pursuant to the Merger.
WA means Wilshire Advisers, LLC, a New York limited liability company.
WAC means Whitestone Acquisition Corp., a New York corporation
wholly-owned by TWGI and created to effectuate the merger with BJB Holdings and
the acquisition of BJB's subsidiaries.
▇▇▇▇▇▇▇ means ▇▇▇▇▇▇▇ Contracting, Inc., a California corporation and
wholly-owned subsidiary of REXX.
▇▇▇▇▇▇▇ Sale means the sale by REXX of ▇▇▇▇▇▇▇ pursuant to a stock
purchase agreement dated June 10, 1999.
W Capital means Whitestone Capital Markets, Inc., a New York
corporation.
WG means The Whitestone Group, LLC, a New York limited liability
company.
WI and WII mean, respectively, Wilshire Holdings I and Wilshire
Holdings II, both New York corporations which, at the Effective Time, will be
wholly-owned subsidiaries of BJB Holdings I.
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WIn means Wilshire Investors, LLC, a Wisconsin limited liability
company.
WLA means Wilshire Louisiana Advisers, LLC, a Louisiana limited
liability company.
WNY means Wilshire New York Advisers II, LLC, a New York limited
liability company.
WP means Wilshire Partners, LLC, a Florida limited liability company.
ARTICLE II
CONSUMMATION OF MERGER
The closing of the Merger ("Closing") will take place as soon as
practicable after the approval of the Proxy Actions by the shareholders of REXX
(the "Closing Date"), at the offices of Tashlik, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C., ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. or at or on such
other time, date and place, or by facsimile or overnight delivery, as shall be
mutually agreed to by the Parties. At the time of the Closing, the parties will
cause the Merger to be consummated by filing a Certificate of Merger with the
Secretary of State of New York, in such form as required by and executed in
accordance with the BCL. The date and time of the filing of the Certificate of
Merger shall be the "Effective Date" or "Effective Time" as used herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF REXX
In order to induce TWGI to enter into this Agreement, REXX represents
and warrants to TWGI that the statements contained in this Article III are true,
correct and complete (except as otherwise indicated the statements contained in
this Article III do not relate to ▇▇▇▇▇▇▇):
Section 3.01 Organization and Standing. REXX is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York with full power and authority (corporate and other) to own, lease, use
and operate its properties and to conduct its business as and where now owned,
leased, used, operated and conducted. The name under which REXX was originally
incorporated was "Computronic Services, Inc." REXX is not in default in the
performance, observation or fulfillment of any provision of its Certificate of
Incorporation or its By-laws. REXX is qualified to do business in each
jurisdiction where the nature of its activities would require it to so qualify,
except where the failure to so qualify could not have a REXX Material Adverse
Effect.
Section 3.02 Corporate Power and Authority. REXX has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations under this Agreement. This Agreement and the transactions
contemplated by this Agreement have been duly and validly authorized by all
necessary corporate action on the part of REXX and the Agreement has been duly
executed and delivered by REXX and constitutes the legal, valid and binding
obligation of REXX, enforceable against REXX in accordance with its terms, which
in some cases are subject to the approval and adoption of those transactions
contemplated by this Agreement by REXX's shareholders.
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Section 3.03 Conflicts; Consents and Approvals. Except as set forth on
Schedule 3.03, neither the execution or delivery of this Agreement by REXX nor
the consummation of the transactions contemplated by this Agreement will:
(a) violate or result in a breach of any provision of, or
constitute a default (or an event which, with the giving of notice, the passage
of time, or both, would constitute a default) under, or entitle any third party
(with the giving of notice, the passage of time or both) to terminate,
accelerate or call a default under any of the terms, conditions or provisions of
the Certificate of Incorporation or By-laws of REXX, or any note, bond,
mortgage, indenture, deed of trust, license, contract, undertaking, agreement,
lease or other instrument or obligation of REXX filed as an exhibit to the REXX
SEC Documents (as defined in Section 3.07 of this Agreement);
(b) violate any order, writ, injunction, decree, statute,
rule, or regulation applicable to REXX or its properties or assets; or
(c) require REXX to obtain any action or consent or
approval of, or review by, or registration with any third party, court or
governmental body or other agency, instrumentally or authority except for (i)
the filing of the Certificate of Merger, together with the required officers'
certificates; (ii) the filing of a Form 8-K with the Securities and Exchange
Commission ("SEC") and the American Stock Exchange within fifteen (15) days
after the Closing Date; (iii) any filings as may be required under applicable
state securities laws; and (iv) the filing of the Registration Statement (as
defined in Section 5.1(b) hereof) with the SEC in accordance with the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and clearance thereof by
the SEC to approve the Proxy Actions.
Section 3.04 Legal Proceeding. There is no Action pending or, to the
knowledge of REXX, threatened against REXX which could have a REXX Material
Adverse Effect or a material adverse effect on the ability of REXX to consummate
the transactions contemplated by this Agreement.
Section 3.05 Brokerage and Finder's Fees. Neither REXX nor any of its
directors, officers or employees has incurred, or will incur, any brokerage,
finder's or similar fee in connection with the transactions contemplated by this
Agreement.
Section 3.06 Authorization and Issuance of REXX Common Stock. The
authorized capital stock of REXX consists of 12,000,000 shares of REXX Common
Stock, of which 2,467,576 shares were issued and outstanding as of September 30,
1999, excluding treasury shares, and 1,000,000 shares of preferred stock, $1.00
par value per share, of which no shares are issued or outstanding. The aggregate
number of all outstanding REXX Options, REXX Options subject to grant, warrants
and other rights to receive shares of REXX Common Stock are set forth in Exhibit
B attached hereto. In connection with the ▇▇▇▇▇▇▇ Sale, REXX will acquire
125,000 currently issued and outstanding shares of REXX Common Stock. All of the
issued and outstanding shares of the REXX Common Stock were issued in compliance
in all material respects with the registration requirements of all applicable
federal and state securities laws or pursuant to valid exemptions therefrom.
Each outstanding share of REXX Common Stock has been duly authorized and validly
issued and is fully paid and nonassessable, and no share of REXX Common Stock
has been issued in violation of preemptive or similar rights.
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Section 3.07 SEC Documents; Absence of Changes. REXX has delivered to
TWGI REXX's Quarterly Reports on Form 10-Q for the quarters ended March 31, June
30 and September 30, 1999, its Annual Report on Forms 10-K and 10-K/A for the
fiscal year ended December 31, 1998, as amended, its Form 8-K dated June 15,
1999 and its Proxy Statement with respect to its 1998 Annual Meeting of
Shareholders (collectively, the "REXX SEC Documents"). The REXX SEC Documents
were true and complete in all material respects as at their respective dates,
and did not contain any untrue statement of a material fact nor omit to state
any material fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances in which they were
made, not misleading. Since the filing of its Quarterly Report on Form 10-Q for
the quarter ended September 30, 1999, there has not been any REXX Material
Adverse Effect not reflected in the REXX SEC Documents.
Section 3.08 Voting Agreement. All of the persons and/or entities
deemed affiliates of REXX within the meaning of Rule 145 promulgated under the
Securities Act are listed on Exhibit C hereto (the "REXX Affiliates"), and all
except Messrs. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ have agreed in writing to vote for approval of
the Proxy Actions, pursuant to a Voting Agreement attached hereto or Exhibit D
("Voting Agreements").
Section 3.09 Complete Disclosure. No representation or warranty by REXX
in this Agreement or in any schedule delivered by or on behalf of REXX contains,
or will contain as of the Effective Time, any untrue statement of a material
fact or omits, or will omit as of the Effective Time, a material fact necessary
to make the statements contained herein or therein not misleading.
Section 3.10 Proxy Statement/Prospectus. The written information
supplied by REXX expressly for the purpose of inclusion in the proxy
statement/prospectus to be sent to the shareholders of REXX in connection with
the meeting of REXX's shareholders (the "REXX Shareholders Meeting") shall not,
on the date the Proxy Statement is first mailed to REXX's Shareholders or at the
time of the REXX Shareholders Meeting, contain any untrue statement of a
material fact, or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. If at any time between the filing of the Registration
Statement and the Effective Time any event or information should be discovered
by REXX that should be set forth in a supplement to the Proxy Statement, REXX
shall promptly inform TWGI. Notwithstanding the foregoing, REXX makes no
representation, warranty or covenant with respect to any information supplied by
TWGI that is contained in any of the foregoing documents.
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Section 3.11 Environmental Matters. REXX is operating and has at all
times operated its business in material compliance with all Environmental Laws,
and no material expenditures are or will be required in order to comply with
such Environmental Laws. Except as disclosed on Schedule 3.11 REXX has not
received any citation, inquiry or other communication, or is a party to any
Action, that relates or alleges any actual or potential violation or failure to
comply with any Environmental Laws that will result in a REXX Material Adverse
Effect. To REXX's knowledge, ▇▇▇▇▇▇▇ is in material compliance with all
Environmental Laws, and no material expenditures are or will be required in
order to comply with such Environmental Laws. Except as disclosed in Schedule
3.11, to REXX's knowledge, ▇▇▇▇▇▇▇ has not received any citation, inquiry or
other communication, or is a party to any Action, that relates or alleges any
actual or potential violation or failure to comply with any Environmental Laws
that will result in a REXX Material Adverse Effect. "Environmental Laws" means
all applicable statutes, rules, regulations, ordinances, orders, decrees,
judgments, permits, licenses, consents, approvals, authorizations, and
governmental requirements or directives or other obligations lawfully imposed by
governmental authority under federal, state or local law pertaining to the
protection of the environment, protection of public health, protection of worker
health and safety, the treatment, emission and/or discharge of gaseous,
particulate and/or effluent pollutants, and/or the handling of hazardous
materials, including without limitation, the Clean Air Act, 42 U.S.C. ss. 7401,
et seq., the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), 42 U.S.C. ss. 9601, et seq., the Federal Water Pollution
Control Act, 33 U.S.C. ss. 1321, et seq., the Hazardous Materials Transportation
Act, 49 U.S.C. ss. 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. ss. 690-1, et seq. ("RCRA"), and the Toxic Substances Control Act, 15
U.S.C. ss. 2601, et seq.
Section 3.12 Insurance. REXX has been and is insured with respect to
its properties and the conduct of its business in such amounts and against such
risks as are sufficient for compliance with law and as are adequate to protect
the property and business of REXX in accordance with normal industry practice.
REXX has provided TWGI a true, correct and complete list of all insurance
policies and bonds in force in which REXX is named as an insured party, or for
which it has paid any premiums (the "Policies"), and such list correctly states
the name of the insurer, the name of each insured party, the type and amount of
coverage, deductible amount, if any, the expiration date and the premium amount
of each such policy or bond. All such Policies are currently in full force and
effect and no notice of cancellation or termination has been received by REXX
with respect to any such policy. REXX will continue all of such Policies in full
force and effect through the date of the ▇▇▇▇▇▇▇ Sale as they relate to ▇▇▇▇▇▇▇,
and as to all other policies through the Closing Date. All premiums currently
due and payable on such Policies have been paid. REXX is not a co-insurer under
any term of any insurance policy except as set forth in the Policies.
Section 3.13 Officers and Employees of REXX. Except as disclosed in
Schedule 3.13, no present or former Related Party of REXX has any financial
interest, direct or indirect, in any vendor, client or account of, or other
outside business which has transactions in excess of $10,000 in the aggregate
with, REXX.
Section 3.14 Audited and Unaudited Financial Statements. REXX has
furnished to TWGI the unaudited financial statements for the period ended
September 30, 1999 and the audited financial statements for the fiscal year
ended December 31, 1998 (collectively, the "Financial Statements"). The
Financial Statements have been prepared in accordance with the books and records
of REXX, have been prepared in accordance with GAAP on a consistent basis for
all periods presented, are true and correct in all material respects and fairly
present the financial condition and results of operations of REXX as of the date
stated and the results of operations of REXX for the periods then ended in
accordance with such practices.
11
Section 3.15 Undisclosed Liabilities. REXX has no liability or
obligation of any nature (whether liquidated, unliquidated, accrued, absolute,
contingent or otherwise and whether due or to become due) except:
(a) those disclosed on Schedule 3.15 hereto;
(b) those set forth in the Financial Statements which have
not been paid or discharged since the date thereof;
(c) those contractual obligations arising after the date
of this Agreement under agreements or other commitments specifically identified
in Schedule 3.24; and
(d) those current liabilities (including provisions for
current and deferred income tax) incurred since September 30, 1999, in
transactions entered into in the ordinary course of business consistent with
past practices which are properly reflected on its books and which are not
inconsistent with the other representations, warranties and agreements of REXX
set forth in this Agreement.
Section 3.16 Absence of Certain Changes. Since September 30, 1999,
other than as set forth on Schedule 3.16 attached hereto, there has not been:
(a) any REXX Material Adverse Effect, or any occurrence,
circumstance, or combination thereof which reasonably could be expected to
result in any such REXX Material Adverse Effect, including, without limitation,
any Material Adverse Effect relating to a relationship with any existing
investor, borrower, or existing agent of REXX;
(b) any declaration, setting aside or payment of any
dividend or any distribution (in cash or in kind) to any shareholder of REXX, or
any direct or indirect redemption, repurchase or other acquisition by REXX of
any of REXX capital stock or any options, warrants, rights or agreements to
purchase or acquire such stock;
(c) any transaction entered into or carried out by REXX
other than in the ordinary and usual course of REXX's business consistent with
past practices;
(d) any borrowing or agreement to borrow funds by REXX,
any incurring by REXX of any other obligation or liability (contingent or
otherwise), except liabilities incurred in the usual and ordinary course of
REXX's business consistent with past practices, or any endorsement, assumption
or guarantee of payment or performance of any loan or obligation of any other
person by REXX;
(e) any material change in REXX's accounting principles or
practices or its method of application of such principles or practices;
12
(f) any mortgage, pledge, lien, security interest,
hypothecation, charge or other encumbrance imposed or agreed to be imposed on or
with respect to the property or assets of REXX;
(g) any sale, lease, transfer, abandonment, license,
assignment or other disposition of, or any agreement to sell, lease or otherwise
dispose of any of the properties, rights or assets of REXX;
(h) any loan or advance made by REXX to any person except
in the ordinary and usual course of business;
(i) any modification, waiver, change, amendment, release,
recision or termination of, or accord and satisfaction with respect to, any
term, condition or provision of any Contract, other than any satisfaction by
performance in accordance with the terms thereof in the usual and ordinary
course of business;
(j) any labor dispute or disturbance adversely affecting
the business operations or condition (financial or otherwise) of REXX,
including, with limitation, the filing of any petition or charge of unfair or
discriminatory labor practice with any governmental or regulatory authority,
efforts to effect a union representation election, actual or threatened employee
strike, work stoppage or slowdown;
(k) any material damage, destruction or property loss,
whether or not covered by insurance, affecting adversely the properties or
business of REXX; or
(l) any Contract entered into by REXX that is not able to
be terminated by REXX on 30 days or fewer advance notice without penalty or
premium or which is outside the ordinary and usual course of business.
Section 3.17 Taxes.
(a) Except as disclosed in Schedule 3.17(a), REXX has duly
paid or accrued all federal, state, local and foreign taxes, assessments, fees
and other governmental charges (hereinafter, "Taxes") when due and payable.
Except as disclosed in Schedule 3.17(a), REXX has duly filed all federal, state,
local and foreign tax returns and tax reports required to be filed by it, all
such returns and reports are true, correct and complete, none of such returns
and reports have been amended, and all Taxes arising under such returns and
reports (regardless of whether reflected thereon) have been fully paid or shall
be adequately reserved for in the Financial Statements, and shall be timely paid
when due. No claim has been made by authorities in any jurisdiction where REXX
did not file tax returns that it is or may be subject to taxation therein. All
tax payments relating to employees, including income tax withholding, FICA,
FUTA, unemployment and workers' compensation payments due and payable as of the
date hereof have been fully and timely paid or accrued.
13
(b) REXX has delivered copies of all federal, state,
local, and foreign income tax returns filed with respect to REXX for taxable
periods ended on or after December 31, 1997. Except as disclosed in Schedule
3.17(b), there have been no audits conducted by taxing authorities with respect
to any tax year for which assessment is not barred by any applicable statute of
limitations. No waivers of any applicable statute of limitations for the filing
of any tax returns or payment of any taxes or assessments of any deficient or
unpaid taxes are outstanding. All deficiencies proposed as a result of any
audits have been paid or settled. There is no pending or, to the knowledge of
REXX, threatened federal, state, local or foreign tax audit or assessment of
REXX and no agreement with any federal, state, local or foreign taxing authority
that may affect the subsequent tax liabilities of REXX.
(c) All Taxes attributable to the existence or operation
of REXX shall, to the extent not already paid, be properly reflected in the
Financial Statements as at or through the Closing Date in accordance with GAAP
consistently applied.
(d) Except as disclosed in Schedule 3.17(d), REXX has not
been a member of an affiliated, consolidated, combined or unitary group for
purposes of taxes and has no liability under Treasury Regulation 1.1502-6. There
exists no tax-sharing agreement or arrangement pursuant to which REXX is
obligated to pay the tax liability of any other person or to indemnify any other
person with respect to any tax.
Section 3.18 Compliance with Law. REXX has complied and is in
compliance in all material respects with all Applicable Laws except where the
failure to so comply would not have a REXX Material Adverse Effect. Except as
disclosed in Schedule 3.18, to REXX's knowledge, ▇▇▇▇▇▇▇ has complied and is in
compliance in all material respects with the Applicable Laws which are
applicable or relate to ▇▇▇▇▇▇▇ as its business or properties except where the
failure to so comply would not have a REXX Material Adverse Effect. REXX has all
governmental, self-regulatory and other non-governmental franchises, licenses,
permits, consents, authorizations, approvals and certifications necessary or
appropriate for the operation of its business or the ownership of its properties
(collectively, "Permits"). Schedule 3.18 includes a list of all Permits held by
REXX, each of which is currently valid and in full force and effect and, except
as set forth on Schedule 3.18, will continue to be valid and in full force and
effect immediately after the Effective Time. REXX is not in violation of any of
the Permits, and there is no pending or, to the knowledge of REXX, any
threatened proceeding which could result in the revocation, cancellation or
inability of REXX to renew any Permit.
Section 3.19 Proprietary Rights. (a) Schedule 3.19 sets forth:
(i) all names, patents, inventions, trade secrets,
proprietary rights, computer software, trademarks, trade names, service marks,
logos, copyrights and franchises and all applications therefor, registrations
thereof and licenses, sublicenses or agreements in respect thereof which REXX
owns or has the right to use or to which REXX is a party and the loss of which
could have a REXX Material Adverse Effect; and
(ii) all filings, registrations or issuances of any of the
foregoing with or by any federal, state, local or foreign regulatory,
administrative or governmental office or offices (all items in (i) and (ii) of
this Section 3.19 being sometimes hereinafter referred to collectively as the
"Proprietary Rights").
14
(b) Except as set forth in Schedule 3.19, REXX is the sole
and exclusive owner of all right, title and interest in and to all Proprietary
Rights free and clear of all liens, claims, charges, equities, rights of use,
encumbrances and restrictions whatsoever, and there is not pending or, to the
knowledge of REXX, threatened any investigation, proceeding, inquiry or other
review by any federal, state, local or foreign regulatory, administrative or
governmental office or offices with respect to REXX's right, title or interest
in any Proprietary Right.
(c) Except as set forth on Schedule 3.19, none of the
Proprietary Rights (i) has been hypothecated, sold, assigned or licensed by
REXX, or to the knowledge of the undersigned officer of REXX, any person; (ii)
infringe upon or violate the proprietary rights of any person; (iii) to the
knowledge of the undersigned officer of REXX, are subject to challenge, claims
of infringement, unfair competition or other claims; or (iv) to the knowledge of
REXX, are being infringed upon or violated by any person. REXX has not given any
indemnification against patent, trademark or copyright infringement as to any
equipment, materials, products, services or supplies which REXX uses, licenses
or sells; and there is not pending or, to the knowledge of REXX, threatened any
claim or litigation against REXX contesting the right of REXX to sell, engage in
or employ any such product, process, method, or operation.
Section 3.20 Restrictive Documents or Laws. Other than as set forth on
Schedule 3.20 attached hereto, REXX is not a party to or bound under any
mortgage, lien, lease, agreement, Contract, instrument, law, order, judgment,
decree or any similar restriction not of general application which adversely
affects, or reasonably could be expected to so affect (a) the business,
operations, assets, properties, rights, or condition (financial or otherwise) of
REXX; (b) the continued operation of REXX's businesses immediately after the
Closing Date on substantially the same basis as such business is currently
operated; or (c) the consummation of the transactions contemplated by this
Agreement.
Section 3.21 Bank Accounts, Depositories, Power of Attorney. Set forth
in Schedule 3.21 is a true, correct and complete list of the names and locations
of all banks or other depositories in which REXX has accounts or safe deposit
boxes, and the names of the persons authorized to draw thereon, borrow therefrom
or have access thereto. Except as set forth in Schedule 3.21, no person has a
power of attorney from REXX.
Section 3.22 Title to and Condition of Properties. Except as set forth
in Schedule 3.22, REXX has good, valid and marketable title to all of its assets
and properties of every kind, nature and description, tangible or intangible,
wherever located, which constitute all of the property (including without
limitation property and assets shown or reflected on the Financial Statements)
now used in and necessary for the conduct of its business as presently conducted
and all such properties are owned free and clear of all mortgages, pledges,
liens, security interests, encumbrances and restrictions of any nature
whatsoever. All such properties are usable for their current uses without
violating any Applicable Laws, or any applicable private restrictions. Except as
set forth in Schedule 3.22, no financing statement under the Uniform Commercial
Code or similar law naming REXX or any of its predecessors has been filed in any
jurisdiction, and REXX is not a party to or bound under any agreement or legal
obligation authorizing any party to file any such financing statement. All
tangible personal property owned, leased or used by REXX is suitable for the
purpose or purposes for which it is being used and has been maintained in all
material respects in accordance with the terms of any lease applicable thereto.
15
Section 3.23 ERISA.
(a) Except as set forth in Schedule 3.23 hereof, REXX is
not a party to an "employee benefit plan", as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974 ("ERISA") which (i) is subject
to any provision of ERISA and (ii) is or was at any time maintained,
administered or contributed to by REXX and covers any employee or former
employee of REXX and under which REXX or any Affiliate has any liability. Such
plans are referred to collectively herein as the "Employee Plans." For purposes
of this section, "Affiliate" of any person or entity includes any other person
or entity which, together with such person or entity, could be treated as a
single employer under Section 414 of the Code or is an "affiliate," whether or
not incorporated, as defined in Section 407(d)(7) of ERISA, of such person or
entity.
(b) Schedule 3.23 identifies each employment, severance or
other similar contract, arrangement or policy and each plan or arrangement
(written or oral) providing for insurance coverage (including any self-insured
arrangements), workers' compensation, disability benefits, severance benefits,
supplemental unemployment benefits, vacation benefits, retirement benefits or
for deferred compensation, profit-sharing, bonuses, stock options, stock
appreciation or other forms of incentive compensation, or post-retirement
insurance, compensation or benefits which (i) is not an Employee Plan, (ii) is
entered into, maintained or contributed to, as the case may be, by REXX or any
of its Affiliates, and (iii) covers any employee or former employee of REXX or
any of its Affiliates. Such contracts, plans and arrangements as are described
above, copies or descriptions of all of which have been furnished or made
available previously to TWGI are referred to collectively herein as the "Benefit
Arrangements." Each Benefit Arrangement has been maintained in substantial
compliance with its terms and with requirements prescribed by any and all
statutes, orders, rules and regulations that are applicable to such Benefit
Arrangement.
(c) Except as set forth in Schedule 3.23, there is no
liability in respect of post-retirement health and medical benefits for retired
employees of REXX or any of its Affiliates other than such medical benefits
which are required to be continued under applicable law, determined using
assumptions that are reasonable in the aggregate, over the fair market value of
any fund, reserve or other assets segregated for the purpose of satisfying such
liability (including for such purposes any fund established pursuant to Section
401(h) of the Code). REXX has reserved its right to amend or terminate any
Employee Plan or Benefit Arrangement providing health or medical benefits in
respect of any active employee of REXX or Affiliates under the terms of any such
plan and written descriptions thereof given to employees. With respect to any of
REXX's Employee Plans which are "group health plans" under Section 4980B of the
Code and Section 607(1) of ERISA, there has been material compliance with all
requirements imposed thereunder so that REXX and its Affiliates have no (and
will not incur any) loss, assessment, tax penalty, or other sanction with
respect to any such plan.
(d) Except as set forth in Schedule 3.23, there has been
no amendment to, written interpretation or announcement (whether or not written)
by REXX or any of its Affiliates relating to any Employee Plan or Benefit
Arrangement which would increase the expense of maintaining such Employee Plan
or Benefit Arrangement above the level of the expense incurred in respect
thereof for the year ended immediately prior to the Closing Date.
16
(e) Other than as set forth in Schedule 3.23, REXX is not
a party to or subject to any employment contract or arrangement providing for
annual future compensation, or the opportunity to earn annual future
compensation (whether through fixed salary, bonus, commission, options or
otherwise) of more than $25,000 to any officer, consultant, director or
employee.
(f) The execution and consummation of the Merger does not
constitute a triggering event under any Employee Plan, whether or not legally
enforceable, which (either alone or upon the occurrence of any additional or
subsequent event) will or may result in any payment (of severance pay or
otherwise), acceleration, increase in vesting, or increase in benefits to any
current or former participant, employee or director of REXX that has not been
specifically disclosed on Schedule 3.23 or which is not material to the
financial condition or business of REXX.
(g) Any reference to ERISA or the Code or any section
thereof shall be construed to include all amendments thereto and applicable
regulations and administrative rulings issued thereunder.
Section 3.24 Contracts. Schedule 3.24 lists all Contracts to which REXX
is a party which are material to the financial condition, operations, assets or
business of REXX or are with any Related Party or any person controlling,
controlled by or under common control with any such person, or with any
employee, agent or consultant of REXX. All of such Contracts are valid and
binding on REXX, in full force and effect, and enforceable in accordance with
their respective terms, except to the extent that the enforceability thereof may
be limited by (x) applicable bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or similar laws in effect which affect the enforcement of
creditors' rights generally or (y) general principles of equity, whether
considered in a proceeding at law or in equity. To the knowledge of REXX, it is
not in violation of, or in default in respect of, nor has there occurred an
event or condition which, with the passage of time or giving of notice (or
both), would constitute a default under, any such Contract.
Section 3.25 Affiliated Transactions. Schedule 3.25 includes a list of
all amounts in excess of $10,000 in the aggregate payable to REXX by any
Affiliated Person of REXX (the "Related Party Receivables") and all such amounts
payable by REXX to any Affiliated Person of REXX (the "Related Party Payables")
as of the date of this Agreement, specifying the payer, payee, amount, terms of
repayment, maturity date and any contractual set off rights of the payer of each
Related Party Receivable and Related Party Payable. Except as disclosed in
Schedule 3.25 and subject to the $10,000 exclusion, no Related Party has any
financial interest, direct or indirect, in any vendor, client or account of, or
other outside business which has transactions with, REXX. REXX has no agreement
or understanding with any Related Party which would influence any such person
not to become associated with or employed by TWGI from and after the Closing or
from serving TWGI after the Closing in a capacity similar to the capacity
presently held with REXX.
17
Section 3.26 No Conflict or Default. Other than as set forth in
Schedule 3.26 attached hereto, neither the execution and delivery of this
Agreement by REXX, nor compliance by REXX with the terms and provisions of this
Agreement, including without limitation the consummation of the Merger, will
violate any Applicable Laws or Permits or conflict with or result in the breach
of any term, condition or provision of the Certificate of Incorporation,
By-laws, or other organizational document of REXX, or of any material Contract,
writ, order, decree, restriction, legal obligation or instrument to which REXX
is a party or by which REXX or any of its assets or properties are or may be
bound or affected, or constitute a default (or an event which, with the giving
of notice, the passage of time, or both would constitute a default) thereunder,
or result in the creation or imposition of any lien, security interest, charge
or encumbrance, or restriction of any nature whatsoever with respect to any
properties or assets of REXX, or give to others any interest or rights,
including rights of termination, acceleration or cancellation in or with respect
to any of the properties, assets, Contracts or business of REXX, or violate any
judgment, order, injunction, decree or award of any court, arbitrator,
administrative agency or governmental or regulatory body against or binding
upon, REXX or any of its securities, properties, assets or business.
Section 3.27 Books of Account; Records. REXX's general ledgers, stock
record books, minute books and other records relating to the assets, properties,
contracts and outstanding legal obligations of REXX, as the case may be, are
complete and correct in all material respects and have been maintained in
accordance with good business practices.
Section 3.28 Subsidiaries. The only direct or indirect subsidiaries of
REXX are those named in Schedule 3.28 (individually, a "Subsidiary", and
collectively the "Subsidiaries") all of which are corporations duly organized,
validly existing and in good standing under the laws of the jurisdiction of
their incorporation, with full power and authority to carry on their respective
businesses as now conducted and to own or lease or operate their properties in
the places where their respective businesses are now conducted and such
properties are now owned, leased or operated. All of the issued and outstanding
voting securities of the Subsidiaries are owned, of record and beneficially, by
REXX, free and clear of any lien or encumbrance whatsoever, and are duly
authorized, validly issued, fully paid and non-assessable. There are no options,
convertible securities, warrants, or other rights (preemptive or otherwise) to
purchase or acquire any capital stock of any Subsidiary and no contracts to
which REXX or any of its affiliates is subject with respect to the issuance,
voting or sale of issued or unissued shares of the capital stock of any of the
Subsidiaries. Neither REXX nor any Subsidiary beneficially owns, directly or
indirectly, any equity securities, profit or loss interest, or capital interest
of any entity other than the Subsidiaries, the Joint Ventures described in
Section 3.29 below or as set forth in Schedule 3.28. Each of the Subsidiaries is
qualified to do business as a foreign corporation in each jurisdiction where the
business of or properties owned or leased by it requires such Subsidiary to be
so qualified.
Section 3.29 Joint Ventures. The only joint ventures or partnerships in
which REXX or any Subsidiary is a joint venturer or partner are those listed in
Schedule 3.29 (individually, a "Joint Venture", and collectively the "Joint
Ventures"). Each Joint Venture is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, with full power
to carry on its business and to own or lease or operate its properties in the
places where such business is now conducted and such properties are now owned,
leased or operated. REXX has made available to TWGI complete and correct copies
of all instruments governing the Joint Ventures, as in effect on the date
hereof, including all amendments thereto. Except as set forth in Schedule 3.29
hereto:
18
(a) the interests in the Joint Ventures owned by REXX or
any Subsidiary are duly authorized and issued, have received all necessary
governmental approvals and are held by REXX or such Subsidiary free and clear of
any liens, claims or encumbrances whatsoever;
(b) the properties and assets of the Joint Ventures are
held by them free and clear of any liens, claims or encumbrances whatsoever,
other than liens for current taxes which are not delinquent and liens securing
debt to REXX; and
(c) any and all loans made by REXX to such Joint Ventures
are valid and enforceable in accordance with their terms, and individually or in
the aggregate do not violate any restrictions or regulations established by law.
Section 3.30 Employment Agreements; Severance. Except for the
employment agreements set forth in Schedule 3.30, REXX is not a party to any
employment or severance agreement. Neither the consummation of the Merger nor
the passage of time following the consummation of the Merger will result in any
payment becoming due from REXX or any Subsidiary to any officer or employee
thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TWGI
In order to induce REXX to enter into this Agreement, TWGI on behalf of
itself and the Affiliates, hereby represents and warrants to REXX that the
statements contained in this Article IV are true, correct, and complete (the
term "Affiliate" or "Affiliates" as used in this Article IV shall include WG,
WA, WP, WI, WII, WIn, WLA, WNY, W Capital, BJB Holdings, WAC and RAC):
Section 4.01 Organization and Standing of TWGI, BJB Holdings, WAC and
RAC. TWGI, and upon the completion of their organization and at the Effective
Time BJB Holdings, WAC and RAC will be corporations duly organized, validly
existing and in good standing under the laws of the State of New York, with full
power and authority (corporate and other) to own, lease, use and operate their
properties and to conduct their business as and where now owned, leased, used,
operated and conducted. TWGI, BJB Holdings, WAC and RAC are duly qualified to do
business and are in good standing in each jurisdiction where the nature of their
activities would require them to so qualify, except where the failure to so
qualify would not have a Material Adverse Effect on TWGI, BJB Holdings, WAC or
RAC. TWGI, BJB Holdings, WAC and RAC are not in default in the performance,
observation or fulfillment of any provision of their Certificates of
Incorporation or Bylaws.
Section 4.02 Organization and Standing of WA and WNY. WA and WNY are
limited liability companies duly organized, validly existing and in good
standing under the laws of the State of New York with full power and authority
to own, lease, use and operate their properties and to conduct their business as
and where now owned, leased, used, operated and conducted. WA and WNY are duly
qualified to do business and are in good standing in New York, are not qualified
to do business in any other jurisdiction and neither the nature of the business
or other activities conducted by them nor the properties they own, lease or
operate requires them to qualify to do business as a foreign corporation in any
other jurisdiction. WA and WNY are not in default in the performance,
observation or fulfillment of any provision of their Certificate of Organization
or Operating Agreement. WA and WNY are registered certified capital companies
under Section 11 et seq. of the New York Tax Law and are in compliance with such
law and meets all the requirements to maintain such status.
19
Section 4.03 Organization and Standing of WG. WG is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of New York with full power and authority to own, lease, use and
operate its properties and to conduct its business as and where now owned,
leased, used, operated and conducted. WG is duly qualified to do business and is
in good standing in New York and in all other jurisdictions where being so
qualified is material to its business, and neither the nature of the business or
other activities conducted by it nor the properties it owns, leases or operates
requires it to qualify to do business as a foreign corporation in any other
jurisdiction. WG is not in default in the performance, observation or
fulfillment of any provision of its Certificate of Organization or Operating
Agreement.
Section 4.04 Organization and Standing of WP. WP is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Florida with full power and authority to own, lease, use and
operate its properties and to conduct its business as and where now owned,
leased, used, operated and conducted. WP is duly qualified to do business and is
in good standing in the State of Florida, is not qualified to do business in any
other jurisdiction and neither the nature of the business or other activities
conducted by it nor the properties it owns, leases or operates requires it to
qualify to do business as a foreign corporation in any other jurisdiction. WP is
not in default in the performance, observation or fulfillment of any provision
of its Certificate of Organization or Operating Agreement. WP is a registered
certified capital company under the Florida Certified Capital Company Act and is
in compliance with such Act and meets all of the requirements to maintain such
status.
Section 4.05 Organization and Standing of W Capital and WI. WI and W
Capital are each a corporation duly organized, validly existing and in good
standing under the laws of the State of New York with full power and authority
to own, lease, use and operate its properties and to conduct its business as and
where now owned, leased, used, operated and conducted. WI and W Capital are each
duly qualified to do business and is in good standing in New York, is not
qualified to do business in any other jurisdiction and neither the nature of the
business or other activities conducted by it nor the properties it owns, leases
or operates requires it to qualify to do business as a foreign corporation in
any other jurisdiction. WI and W Capital are each not in default in the
performance, observation or fulfillment of any provision of its Articles of
Incorporation or By-laws. W Capital was formed for the purpose of initiating in
the near future the broker-dealer activities proposed for TWGI, although no
regulatory filings have been made as of the date hereof.
Section 4.06 Organization and Standing of WII. WII is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York with full power and authority to own, lease, use and operate
its properties and to conduct its business as and where now owned, leased, used,
operated and conducted. WII is duly qualified to do business and is in good
standing in New York, is not qualified to do business in any other jurisdiction
and neither the nature of the business or other activities conducted by it nor
the properties it owns, leases or operates requires it to qualify to do business
as a foreign corporation in any other jurisdiction. WII is not in default in the
performance, observation or fulfillment of any provision of its Articles of
Incorporation or By-laws.
20
Section 4.07 Organization and Standing of WIn. WIn is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Wisconsin with full power and authority to own, lease,
use and operate its properties and to conduct its business as and where now
owned, leased, used, operated and conducted. WIn is duly qualified to do
business and is in good standing in Wisconsin, is not qualified to do business
in any other jurisdiction and neither the nature of the business or other
activities conducted by it nor the properties it owns, leases or operates
requires it to qualify to do business as a foreign corporation in any other
jurisdiction. WIn is not in default in the performance, observation or
fulfillment of any provision of its Certificate of Organization or Operating
Agreement. WIn is a registered certified capital company under Section 76.635
Wisconsin Statues (1999) and is in compliance with such law and meets all the
requirements to maintain such status.
Section 4.08 Organization and Standing of WLA. WLA is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Louisiana with full power and authority to own, lease,
use and operate its properties and to conduct its business as and where now
owned, leased, used, operated and conducted. WLA is duly qualified to do
business and is in good standing in the State of Louisiana, is not qualified to
do business in any other jurisdiction and neither the nature of the business or
other activities conducted by it nor the properties it owns, leases or operates
requires it to qualify to do business as a foreign corporation in any other
jurisdiction. WLA is not in default in the performance, observation or
fulfillment of any provision of its Certificate of Organization or Operating
Agreement. WLA is a registered certified capital company under the Louisiana
Capital companies Tax Credit Program, La.R.S.51:1921, et seq., and is in
compliance with such law and meets all the requirements to maintain such status.
Section 4.09 Capitalization and Security Holders. The authorized
capital stock of TWGI consists of 30,000,000 shares of common stock, par value
$0.02 per share ("TWGI Common Stock") of which 18,250,000 shares are issued and
outstanding. Each share outstanding of TWGI Common Stock and each Affiliate
membership interest or equity security has been duly authorized and validly
issued and is fully paid and nonassessable, and no TWGI Common Stock has been
issued in violation of preemptive or similar rights. Except as set forth in
Schedule 4.09, there are no outstanding subscriptions, options, warrants, puts,
calls, agreements, understandings, claims, or other commitments or rights of any
type relating to the issuance, sale or transfer by TWGI or Affiliates or any of
their shareholders or members, respectively, of any securities or interests of
TWGI or Affiliates, nor are there outstanding any securities which are
convertible into or exchangeable for shares of capital stock of TWGI or for
membership interests of the Affiliates; and neither TWGI nor Affiliates have any
obligations of any kind to issue any additional securities or to pay for any
securities of TWGI or any predecessor. The issuance and sale of all securities
of TWGI and Affiliates have been in full compliance in all material respects
with the registration requirements of all applicable federal and state
securities laws or pursuant to valid exemptions therefrom.
21
Section 4.10 Subsidiaries. Except as set forth in Schedule 4.10, TWGI
does not own, directly or indirectly, any equity or other ownership interest in
any limited liability company, corporation, partnership, joint venture or other
entity or enterprise. TWGI is not subject to any obligation or requirement to
provide funds to or make any investment (in the form of a loan, capital
contribution or otherwise) in any entity.
Section 4.11 Stock Ownership and Authority. At the Effective Time, all
outstanding shares of capital stock of BJB Holdings and RAC will be owned free
and clear of all liens, security interests, encumbrances, pledges, charges,
claims, voting trusts, and restrictions on transfer of any nature whatsoever
("Restrictions"), except Restrictions on transfer imposed by or pursuant to
federal or state securities laws or those set forth in Schedule 4.11. At the
Effective Time, (i) TWGI will own free of Restrictions all of the equity
securities of RAC and BJB Holdings, and (ii) BJB Holdings will own free of
Restrictions all of the equity securities of WI and WII, which corporations
will, in turn, own (a) all of the membership interests in WG, (b) 87% of the
membership interests in WA, (c) 56.88% of the membership interests in WP. In
connection with the Merger, holders of WG will own (x) all of the membership
interests in WLA, (y) 65% of the membership interests in WI and (z) all of the
capital stock of W Capital. The authorized capital stock of RAC consists of 200
shares of RAC Common Stock, which is the sole class entitled to vote. As of the
date of this Agreement, no shares of RAC Common Stock are issued and
outstanding; however, prior to the Effective Time, RAC will issue ten (10)
shares of RAC Common Stock to TWGI, which shares will constitute the sole
outstanding securities of RAC as of the Effective Time.
Section 4.12 Corporate Power and Authority. TWGI, BJB Holdings, WAC and
RAC have all requisite corporate power and authority to enter into and perform
this Agreement and to carry out their obligations under this Agreement. This
Agreement and the transactions contemplated by this Agreement have been duly and
validly authorized by all necessary corporate and shareholder action on the part
of TWGI, BJB Holdings, WAC and RAC. This Agreement has been duly executed and
delivered by, constitutes the legal, valid and binding obligation of and is
enforceable against TWGI, BJB Holdings, WAC and RAC in accordance with its
terms.
Section 4.13 Consents and Approvals. Except as set forth in Schedule
4.13 hereto, neither the execution and delivery of this Agreement by TWGI, BJB
Holdings, WAC and RAC nor the consummation of the transactions contemplated by
this Agreement requires or will require on behalf of TWGI or Affiliates any
action or consent or approval of, or review by, or registration with, any third
party, court or governmental body or other agency, instrumentality or authority.
Section 4.14 Audited and Unaudited Financial Statements. TWGI has
furnished to REXX the unaudited financial statements for the period ended
September 30, 1999 and the audited financial statements for the fiscal year
ended December 31, 1998 as specified in and attached to Schedule 4.14
(collectively, the "TWGI Financial Statements"). The TWGI Financial Statements
have been prepared in accordance with the books and records of TWGI and
Affiliates, as the case may be, have been prepared in accordance with GAAP on a
consistent basis for all periods presented, are true and correct in all material
respects and fairly present the financial condition and results of operations of
TWGI and Affiliates as of the date stated and the periods then ended in
accordance with such practices.
22
Section 4.15 Undisclosed Liabilities. TWGI and Affiliates have no
liability or obligation of any nature (whether liquidated, unliquidated,
accrued, absolute, contingent or otherwise and whether due or to become due)
except:
(a) those disclosed on Schedule 4.15 hereto;
(b) those set forth in the TWGI Financial Statements which
have not been paid or discharged since the date thereof;
(c) those contractual obligations arising after the date
of this Agreement under agreements or other commitments specifically identified
in Schedule 4.25; and
(d) those current liabilities (including provisions for
current and deferred income tax) incurred since September 30, 1999, in
transactions entered into in the ordinary course of business consistent with
past practices which are properly reflected on their books and which are not
inconsistent with the other representations, warranties and agreements of TWGI
and Affiliates set forth in this Agreement.
Section 4.16 Absence of Certain Changes. Since September 30, 1999,
other than as set forth on Schedule 4.16 attached hereto, there has not been:
(a) any Material Adverse Effect upon TWGI or Affiliates or
any occurrence, circumstance, or combination thereof which reasonably could be
expected to result in any such material adverse change (a Material Adverse
Effect), including, without limitation, any Material Adverse Effect relating to
a relationship with any existing investor, borrower, or agent of TWGI or
Affiliates;
(b) any declaration, setting aside or payment of any
dividend or any distribution (in cash or in kind) to any shareholder or member
of TWGI or Affiliates, respectively, or any direct or indirect redemption,
repurchase or other acquisition by TWGI or Affiliates of any of their capital
stock or membership interests or any options, warrants, rights or agreements to
purchase or acquire such stock or interests;
(c) any transaction entered into or carried out by TWGI or
Affiliates other than in the ordinary and usual course of TWGI's or the
Affiliates' business consistent with past practices;
(d) any borrowing or agreement to borrow funds by TWGI or
Affiliates, any incurring by TWGI or Affiliates of any other obligation or
liability (contingent or otherwise), except liabilities incurred in the usual
and ordinary course of TWGI's or the Affiliates' business consistent with past
practices, or any endorsement, assumption or guarantee of payment or performance
of any loan or obligation of any other person by TWGI or Affiliates;
(e) any material change in TWGI's or Affiliates'
accounting principles or practices or its method of application of such
principles or practices;
23
(f) any mortgage, pledge, lien, security interest,
hypothecation, charge or other encumbrance imposed or agreed to be imposed on or
with respect to the property or assets of TWGI or Affiliates;
(g) any sale, lease, transfer, abandonment, license,
assignment or other disposition of, or any agreement to sell, lease or otherwise
dispose of any of the properties, rights or assets of TWGI or Affiliates;
(h) any loan or advance made by TWGI or Affiliates to any
person except in the ordinary and usual course of business;
(i) any modification, waiver, change, amendment, release,
recision or termination of, or accord and satisfaction with respect to, any
term, condition or provision of any Contract, other than any satisfaction by
performance in accordance with the terms thereof in the usual and ordinary
course of business;
(j) any labor dispute or disturbance adversely affecting
the business operations or condition (financial or otherwise) of TWGI or
Affiliates, including, with limitation, the filing of any petition or charge of
unfair or discriminatory labor practice with any governmental or regulatory
authority, efforts to effect a union representation election, actual or
threatened employee strike, work stoppage or slowdown;
(k) any material damage, destruction or property loss,
whether or not covered by insurance, affecting adversely the properties or
business of TWGI or Affiliates; or
(l) any Contract entered into by TWGI or Affiliates that
is not able to be terminated by TWGI or Affiliates on 30 days or fewer advance
notice without penalty or premium or which is outside the ordinary and usual
course of business.
Section 4.17 Taxes.
(a) TWGI and Affiliates have duly paid all Taxes due and
payable by TWGI and Affiliates. TWGI and Affiliates have duly filed all federal,
state, local and foreign tax returns and tax reports required to be filed by it,
including any extensions related thereto, all such returns and reports are true,
correct and complete, none of such returns and reports have been amended, and
all Taxes arising under such returns and reports (regardless of whether
reflected thereon) have been fully paid or shall be adequately reserved for in
the Financial Statements, and shall be timely paid when due. No claim has been
made by authorities in any jurisdiction where TWGI or Affiliates did not file
tax returns that it is or may be subject to taxation therein. All tax payments
relating to employees, including income tax withholding, FICA, FUTA,
unemployment and workers' compensation payments due and payable as of the date
hereof have been fully and timely paid.
(b) TWGI has delivered to REXX copies of all federal,
state, local, and foreign income tax returns filed with respect to TWGI and
Affiliates for taxable periods ended on or after December 31, 1998. There have
been no audits conducted by taxing authorities prior to the date of this
Agreement. No waivers of any applicable statute of limitations for the filing of
any tax returns or payment of any Taxes or assessments of any deficient or
unpaid taxes are outstanding. All deficiencies proposed as a result of any
audits have been paid or settled. There is no pending or, to the knowledge of
TWGI or Affiliates, threatened federal, state, local or foreign tax audit or
assessment of TWGI or Affiliates and no agreement with any federal, state, local
or foreign taxing authority that may affect the subsequent tax liabilities of
TWGI or Affiliates.
24
(c) All Taxes attributable to the existence or operation
of TWGI and Affiliates shall, to the extent not already paid, be properly
reflected in the TWGI Financial Statements as at or through the Closing Date in
accordance with GAAP consistently applied.
(d) TWGI or Affiliates have never been a member of any
affiliated, consolidated, combined or unitary group for purposes of taxes and
TWGI has no liability under Treasury Regulation 1.1502-6. There exists no
tax-sharing agreement or arrangement pursuant to which TWGI or Affiliates is
obligated to pay the tax liability of any other person or to indemnify any other
person with respect to any tax.
Section 4.18 Compliance with Law. TWGI and Affiliates have complied and
are in compliance in all material respects with all Applicable Laws except where
the failure to so comply would not have a TWGI Material Adverse Effect. TWGI and
Affiliates have all Permits necessary or appropriate for the operation of their
businesses or the ownership of properties (collectively, the "Permits").
Schedule 4.18 includes a list of all Permits held by TWGI or Affiliates, each of
which is currently valid and in full force and effect and, except as set forth
on Schedule 4.18, will continue to be valid and in full force and effect
immediately after the Effective Time. TWGI or Affiliates is not in violation of
any of the Permits, and there is no pending or, to the knowledge of TWGI, any
threatened proceeding which could result in the revocation, cancellation or
inability of TWGI or Affiliates to renew any Permit.
Section 4.19 Proprietary Rights. Schedule 4.19 sets forth:
(a) all names, patents, inventions, trade secrets,
proprietary rights, computer software, trademarks, trade names, service marks,
logos, copyrights and franchises and all applications therefor, registrations
thereof and licenses, sublicenses or agreements in respect thereof which TWGI
and Affiliates own or have the right to use or to which TWGI or Affiliates is a
party; and
(b) all filings, registrations or issuances of any of the
foregoing with or by any federal, state, local or foreign regulatory,
administrative or governmental office or offices (all items in (a) and (b) of
this Section 4.19 being sometimes hereinafter referred to collectively as the
"Proprietary Rights").
(c) Except as set forth in Schedule 4.19, TWGI and
Affiliates are the sole and exclusive owners of all right, title and interest in
and to all Proprietary Rights free and clear of all liens, claims, charges,
equities, rights of use, encumbrances and restrictions whatsoever, and there is
not pending or, to the knowledge of TWGI threatened any investigation,
proceeding, inquiry or other review by any federal, state, local or foreign
regulatory, administrative or governmental office or offices with respect to
TWGI's or Affiliates' right, title or interest in any Proprietary Right.
25
(d) Except as set forth on Schedule 4.19, none of the
Proprietary Rights (i) has been hypothecated, sold, assigned or licensed by TWGI
or Affiliates, or to the best knowledge of TWGI or Affiliates, any person; (ii)
to the knowledge of TWGI or Affiliates, infringe upon or violate the proprietary
rights of any person; (iii) to the knowledge of TWGI or Affiliates, are subject
to challenge, claims of infringement, unfair competition or other claims; or
(iv) to the knowledge of TWGI or Affiliates, are being infringed upon or
violated by any person. TWGI or Affiliates have not given any indemnification
against patent, trademark or copyright infringement as to any equipment,
materials, products, services or supplies which TWGI or Affiliates uses,
licenses or sells; and there is not pending or, to the best knowledge of TWGI or
Affiliates, threatened any claim or litigation against TWGI or Affiliates
contesting the right of TWGI or Affiliates to sell, engage in or employ any such
product, process, method, or operation.
Section 4.20 Restrictive Documents or Laws. Other than as set forth on
Schedule 4.20 attached hereto, TWGI or Affiliates is not a party to or bound
under any mortgage, lien, lease, agreement, Contract, instrument, law, order,
judgment, decree or any similar restriction not of general application which
adversely affects, or reasonably could be expected to so affect (a) the
business, operations, assets, properties, rights, or condition (financial or
otherwise) of TWGI or Affiliates; or (b) the consummation of the transactions
contemplated by this Agreement.
Section 4.21 Insurance. TWGI and Affiliates have been and are insured
with respect to its properties and the conduct of its business in such amounts
and against such risks as are sufficient for compliance with law and as are
adequate to protect the property and business of TWGI and Affiliates in
accordance with normal industry practice. TWGI has provided to REXX a true,
correct and complete list of all insurance policies and bonds in force in which
TWGI or Affiliates is named as an insured party, or for which they have paid any
premiums (the "Policies"), and such list correctly states the name of the
insurer, the name of each insured party, the type and amount of coverage,
deductible amount, if any, the expiration date and the premium amount of each
such policy or bond. All such Policies are currently in full force and effect
and no notice of cancellation or termination has been received by TWGI or
Affiliates with respect to any such policy. TWGI and Affiliates will continue
all of such Policies in full force and effect through the Closing Date. All
premiums currently due and payable on such Policies have been paid. TWGI or
Affiliates is not a co-insurer under any term of any insurance policy except as
set forth in the Policies.
Section 4.22 Power of Attorney. Set forth in Schedule 4.22 is a true,
correct and complete list of the names and locations of all banks or other
depositories in which TWGI and RAC have accounts or safe deposit boxes, and the
names of the persons authorized to draw thereon, borrow therefrom or have access
thereto. Except as set forth in Schedule 4.22, no person has a power of attorney
from TWGI , WAC or RAC.
26
Section 4.23 Title to and Condition of Properties. Except as set forth
in Schedule 4.23, TWGI and Affiliates have good, valid and marketable title to
all of their assets and properties of every kind, nature and description,
tangible or intangible, wherever located, which constitute all of the property
(including without limitation property and assets shown or reflected on the TWGI
Financial Statements) now used in and necessary for the conduct of their
business as presently conducted and all such properties are owned free and clear
of all mortgages, pledges, liens, security interests, encumbrances and
restrictions of any nature whatsoever. All such properties are usable for their
current uses without violating any Applicable Laws, or any applicable private
restrictions. Except as set forth in Schedule 4.23, no financing statement under
the Uniform Commercial Code or similar law naming TWGI or Affiliates or any of
their predecessors has been filed in any jurisdiction, and TWGI or Affiliates is
not a party to or bound under any agreement or legal obligation authorizing any
party to file any such financing statement. All tangible personal property
owned, leased or used by TWGI or Affiliates is suitable for the purpose or
purposes for which it is being used and has been maintained in all material
respects in accordance with the terms of any lease applicable thereto.
Section 4.24 Brokerage and Finder's Fees. Neither any shareholder of
TWGI, TWGI nor any of the Affiliates, directors, officers or employees has
incurred or will incur any brokerage, finder's or similar fee in connection with
the transactions contemplated by this Agreement.
Section 4.25 Legal Proceedings. Except as described in Schedule 4.25,
(a) there are no Actions pending or, to the knowledge of TWGI, threatened
against or relating to TWGI or any of its Affiliates, officers, directors,
current or former shareholders, members or employees; and (b) to the knowledge
of TWGI, there exist no disputes, conflicts, or circumstances providing the
basis for a dispute or conflict which could result in any such Action. There are
no Actions pending or, to the knowledge of TWGI, threatened for the purpose of
enjoining or preventing this Agreement or any transaction contemplated by this
Agreement. TWGI or Affiliates are not subject to any judgment, order or decree,
or any governmental restriction, which could have a material adverse effect on
the ability of TWGI or Affiliates to acquire any property or conduct business as
presently conducted.
Section 4.26 ERISA.
(a) Except as set forth in Schedule 4.26 hereof, neither
TWGI nor the Affiliates is a party to an "employee benefit plan", as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA")
which (i) is subject to any provision of ERISA and (ii) is or was at any time
maintained, administered or contributed to by TWGI or any Affiliate and covers
any employee or former employee of TWGI or any Affiliate and under which TWGI or
any Affiliate has any liability. Such plans are referred to collectively herein
as the "Employee Plans." For purposes of this section, "Affiliate" of any person
or entity includes any other person or entity which, together with such person
or entity, could be treated as a single employer under Section 414 of the Code
or is an "affiliate," whether or not incorporated, as defined in Section
407(d)(7) of ERISA, of such person or entity.
27
(b) Schedule 4.26 identifies each employment, severance or
other similar contract, arrangement or policy and each plan or arrangement
(written or oral) providing for insurance coverage (including any self-insured
arrangements), workers' compensation, disability benefits, severance benefits,
supplemental unemployment benefits, vacation benefits, retirement benefits or
for deferred compensation, profit-sharing, bonuses, stock options, stock
appreciation or other forms of incentive compensation, or post-retirement
insurance, compensation or benefits which (i) is not an Employee Plan, (ii) is
entered into, maintained or contributed to, as the case may be, by TWGI or any
of its Affiliates, and (iii) covers any employee or former employee of TWGI or
any of its Affiliates. Such contracts, plans and arrangements as are described
above, copies or descriptions of all of which have been furnished or made
available previously to REXX are referred to collectively herein as the "Benefit
Arrangements." Each Benefit Arrangement has been maintained in substantial
compliance with its terms and with requirements prescribed by any and all
statutes, orders, rules and regulations that are applicable to such Benefit
Arrangement.
(c) Except as set forth in Schedule 4.26, there is no
liability in respect of post-retirement health and medical benefits for retired
employees of TWGI or any of its Affiliates other than such medical benefits
which are required to be continued under applicable law, determined using
assumptions that are reasonable in the aggregate, over the fair market value of
any fund, reserve or other assets segregated for the purpose of satisfying such
liability (including for such purposes any fund established pursuant to Section
401(h) of the Code). TWGI has reserved its right to amend or terminate any
Employee Plan or Benefit Arrangement providing health or medical benefits in
respect of any active employee of TWGI or Affiliates under the terms of any such
plan and written descriptions thereof given to employees. With respect to any of
TWGI's Employee Plans which are "group health plans" under Section 4980B of the
Code and Section 607(1) of ERISA, there has been material compliance with all
requirements imposed thereunder so that TWGI and its Affiliates have no (and
will not incur any) loss, assessment, tax penalty, or other sanction with
respect to any such plan.
(d) Except as set forth in Schedule 4.26, there has been
no amendment to, written interpretation or announcement (whether or not written)
by TWGI or any of its Affiliates relating to any Employee Plan or Benefit
Arrangement which would increase the expense of maintaining such Employee Plan
or Benefit Arrangement above the level of the expense incurred in respect
thereof for the year ended immediately prior to the Closing Date.
(e) Other than as set forth in Schedule 4.26, TWGI or
Affiliates is not a party to or subject to any employment contract or
arrangement providing for annual future compensation, or the opportunity to earn
annual future compensation (whether through fixed salary, bonus, commission,
options or otherwise) of more than Twenty-Five Thousand Dollars ($25,000) to any
officer, consultant, director or employee.
(f) The execution and consummation of the Merger does not
constitute a triggering event under any Employee Plan, whether or not legally
enforceable, which (either alone or upon the occurrence of any additional or
subsequent event) will or may result in any payment (of severance pay or
otherwise), acceleration, increase in vesting, or increase in benefits to any
current or former participant, employee or director of TWGI or Affiliates that
has not been specifically disclosed on Schedule 4.26 or which is not material to
the financial condition or business of TWGI or Affiliates.
(g) Any reference to ERISA or the Code or any section
thereof shall be construed to include all amendments thereto and applicable
regulations and administrative rulings issued thereunder.
28
Section 4.27 Contracts. Schedule 4.27 lists all Contracts, to which
TWGI and Affiliates are a party which are material to the financial condition,
operations, assets or business of TWGI or Affiliates or are with any present or
former Related Parties or any person controlling, controlled by or under common
control with any such person, or with any employee, agent or consultant of TWGI
or Affiliates. All of such Contracts are valid and binding on TWGI and
Affiliates, in full force and effect, and enforceable in accordance with their
respective terms, except to the extent that the enforceability thereof may be
limited by (x) applicable bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or similar laws in effect which affect the enforcement of
creditors' rights generally or (y) general principles of equity, whether
considered in a proceeding at law or in equity. Neither TWGI or Affiliates, is
in violation of, or in default in respect of, nor has there occurred an event or
condition which, with the passage of time or giving of notice (or both), would
constitute a default under, any such Contract.
Section 4.28 Affiliated Transactions. Schedule 4.28 includes a list of
all amounts payable to TWGI or Affiliates by any Affiliated Person of TWGI or
Affiliates (the "Related Party Receivables") and all amounts payable by TWGI or
any Affiliate to any Affiliated Person of TWGI or Affiliates (the "Related Party
Payables") as of the date of this Agreement, specifying the payer, payee,
amount, terms of repayment, maturity date and any contractual set off rights of
the payer of each Related Party Receivable and Related Party Payable. Except as
disclosed in Schedule 4.28, no Related Party has any financial interest, direct
or indirect, in any vendor, client or account of, or other outside business
which has transactions with, TWGI or Affiliates.
Section 4.29 No Conflict or Default. Other than as set forth in
Schedule 4.29, neither the execution and delivery of this Agreement by TWGI, nor
compliance by TWGI with the terms and provisions of this Agreement, including
without limitation the consummation of the Merger, will violate any Applicable
Laws or Permits or conflict with or result in the breach of any term, condition
or provision of the Certificate of Incorporation, By-laws, or other
organizational document of TWGI or Affiliates, or of any material Contract,
writ, order, decree, restriction, legal obligation or instrument to which TWGI
or Affiliates is a party or by which TWGI or Affiliates or any of their
respective assets or properties are or may be bound or affected, or constitute a
default (or an event which, with the giving of notice, the passage of time, or
both would constitute a default) thereunder, or result in the creation or
imposition of any lien, security interest, charge or encumbrance, or restriction
of any nature whatsoever with respect to any properties or assets of TWGI or
Affiliates, or give to others any interest or rights, including rights of
termination, acceleration or cancellation in or with respect to any of the
properties, assets, Contracts or business of TWGI or Affiliates, or violate any
judgment, order, injunction, decree or award of any court, arbitrator,
administrative agency or governmental or regulatory body against or binding
upon, TWGI, the Affiliates or any of their securities, properties, assets or
business.
Section 4.30 Books of Account; Records. TWGI's and Affiliates' general
ledgers, stock record books, minute books and other records relating to the
assets, properties, contracts and outstanding legal obligations of TWGI and
Affiliates, as the case may be, are complete and correct in all material
respects and have been maintained in accordance with good business practices.
29
Section 4.31 Officers, Employees and Compensation. Schedule 4.31 sets
forth the names of all directors, officers and employees of TWGI and Affiliates,
the total salary, bonus, fringe benefits and perquisites each received in the
year ending December 31, 1998, and any changes to the foregoing which have
occurred subsequent to December 31, 1998. Except as disclosed in Schedule 4.31,
there are no other forms of compensation paid to any such director, officer or
employee of TWGI and Affiliates. Except as disclosed in Schedule 4.31, the
amounts accrued on the Financial Statements for vacation pay, sick pay, and all
commissions and other fees payable to agents, salesmen and representatives of
TWGI and Affiliates will be adequate to cover TWGI's liabilities for all such
items. TWGI and Affiliates have not become obligated, directly or indirectly, to
any Related Party, except for current liability for such compensation. Except as
set forth in Schedule 4.31, to the knowledge of TWGI, no Related Party has any
financial interest, direct or indirect, in any vendor, client or account of, or
other outside business which has transactions with, TWGI or Affiliates.
Section 4.32 Proxy Statement Prospectus. The written information
supplied by TWGI or Affiliates for the purpose of inclusion in the Proxy
Statement to be sent to the shareholders of REXX in connection with the REXX
Shareholders Meeting shall not, on the date the Proxy Statement is first mailed
to REXX's Shareholders or at the time of the REXX Shareholders Meeting, contain
any untrue statement of a material fact, or omit to state any material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. If at any time after
the Effective Time any event or information should be discovered by TWGI or
Affiliates that should be set forth in a supplement to the Proxy Statement, TWGI
or Affiliates shall promptly inform REXX. Notwithstanding the foregoing, TWGI
makes no representation, warranty or covenant with respect to any information
supplied by the REXX that is contained in any of the foregoing documents.
Section 4.33 Confidential Private Placement Memorandum. TWGI represents
and warrants that the Confidential Private Placement Memorandum of WP, dated
January 8, 1999, is true and complete and does not contain any untrue statement
of a material fact, or omit to state any material fact necessary in order to
make the statements made therein, in light of the circumstances under which they
were made, not misleading.
Section 4.34 Complete Disclosure. No representation or warranty by TWGI
or Affiliates in this Agreement or in any Schedule delivered by or on behalf of
TWGI or Affiliates contains, or will contain as of the Closing Date, any untrue
statement of a material fact or omits, or will omit as of the Closing Date, a
material fact necessary to make the statements contained herein or therein not
misleading.
ARTICLE V
COVENANTS OF THE PARTIES
Section 5.01 Mutual Covenants
(a) General. Each Party shall use its best efforts to take
all actions promptly and do all things necessary, proper or advisable to
consummate the Merger and the other transactions contemplated by this Agreement,
including without limitation using all commercially reasonable efforts to cause
the satisfaction of the conditions set forth in Article VI of this Agreement for
which such Party is responsible as soon as reasonably practicable and to
prepare, execute, acknowledge or verify, deliver, and file such additional
documents, and take or cause to be taken such additional actions, as any Party
may reasonably request to carry out the purposes or intent of this Agreement.
30
(b) REXX Proxy Statement; Registration Statement. TWGI and
REXX shall cooperate in the timely preparation and filing of a Registration
Statement on Form S-4 (the "Registration Statement") with the SEC, and TWGI
shall use its best efforts to cause the Registration Statement to be declared
effective under the Securities Act. The Registration Statement, at the time it
becomes effective, and at the Effective Time, shall in all material respects
conform to the requirements of the Securities Act and the general rules and
regulations of the SEC thereunder. The Registration Statement shall include the
form of Proxy Statement for the REXX Shareholders Meeting. REXX shall cause the
Proxy Statement to be mailed to its shareholders. REXX will furnish to TWGI the
information required to be included in the Registration Statement and any
amendments thereto with respect to its business and affairs before it is filed
with the SEC and again before any amendment is filed, and shall have the right
to review and comment on the form of Proxy Statement included in the
Registration Statement and any amendments thereto prior to the filing with the
SEC. TWGI shall take all actions required to qualify or obtain exemptions from
such qualification for the TWGI Common Stock to be issued in connection with the
Merger under applicable state "Blue Sky" securities laws, as appropriate. The
Proxy Statement shall relate to the approval of (i) the Merger, (ii) the ▇▇▇▇▇▇▇
Sale, and (iii) the election of a new board of directors, subject to the closing
of the Merger. REXX will, through its Board of Directors and REXX Affiliates,
unanimously recommend to its shareholders approval of such matters. REXX shall
use all reasonable efforts to solicit from its shareholders proxies voting in
favor of such matters.
(c) Approvals and Consents. Each Party shall use its best
efforts to take promptly any additional action that may be necessary, proper or
advisable in connection with any other notices to, filings with, and
authorizations, consents and approvals of any court, administrative agency or
commission, or other governmental authority or instrumentality or any other
third party that it may be required to give, make or obtain in connection with
this Agreement and the consummation of the transactions contemplated hereby.
(d) Cooperation. On and after the Closing, each Party
hereto agrees to execute any and all further documents and writings and to
perform such other commercially reasonable actions which may be or become
necessary or appropriate to effectuate and carry out the transactions
contemplated by this Agreement.
(e) Confidential Information. TWGI and REXX each agree
that each of them shall not at any time after the date of this Agreement
directly or indirectly copy, disseminate or use, for their personal benefit or
the benefit of any third party, any Confidential Information, regardless of how
such Confidential Information may have been acquired, except for the disclosure
or use of such Confidential Information as may be upon the advice of counsel
required by law or legal process, or authorized in writing by the Party from
whom the Confidential Information was obtained. Notwithstanding anything to the
contrary contained in the preceding sentence, Confidential Information shall not
include information (i) that is or becomes generally available to the public
other than as a direct or indirect result of a disclosure by a Party to and in
contravention of this Agreement; (ii) is in a Party's possession at the time of
disclosure otherwise than as a result of such Party's or any third party's
breach of any legal obligation; (iii) becomes known to such Party through
disclosure by sources other than another Party having the legal right to
disclose such information; or (iv) is independently developed by such Party
without reference to or reliance upon the such information (as may be
demonstrated by such Party's written records). TWGI and REXX acknowledge that
all of the Confidential Information is and shall continue to be the exclusive
proprietary property of TWGI or REXX, as the case may be, whether or not
disclosed to or entrusted to the custody of each other in connection with this
transaction.
31
(f) Notices of Certain Events. Each Party shall promptly
notify the other of:
(i) any notice or other communication from any person or entity
alleging that the consent of such person or entity is or may be required in
connection with the Merger;
(ii) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(iii) any Action commenced or threatened against, relating to,
involving, or otherwise affecting, any Party hereto, or any of their property,
or any disputes, conflicts or circumstances providing the basis for any dispute
or conflict, which, if in existence on the date of this Agreement would have
been required to have been disclosed pursuant to this Agreement or which relate
directly or indirectly to the consummation of the Merger.
(g) Injunctive Relief. Each Party acknowledges and agrees
that remedies at law for any violation or attempted violation of any of the
obligations under this Article V would be inadequate and would cause immediate
irreparable harm to the other Parties, and agree that in the event of any such
violation or attempted violation, each be entitled to a temporary restraining
order, temporary and permanent injunctions, and other equitable relief, without
the necessity of posting any bond or proving any actual damage, in addition to
all other rights and remedies which may be available from time to time.
(h) Obligation to Update Schedules. Each Party shall
promptly disclose to the other any information contained in its representations
and warranties or Schedules which, because of an event occurring after the date
hereof, is materially incomplete or is no longer materially correct as of all
times after the date hereof until the Closing Date or any material adverse
development affecting the results of their respective operations; provided,
however, that none of such disclosures shall be deemed to modify, amend or
supplement the representations and warranties of each Party or the Schedules
attached hereto unless each Party shall have consented thereto in writing.
(i) Reasonable Access Pending Closing. Each Party will
give to the other Party, its counsel, accountants, financial advisers and
lenders, and other representatives, after reasonable notice, reasonable access,
during normal business hours, throughout the period prior to the Closing, to all
of the properties, books, contracts, commitments and records relating
exclusively to such Party's business, and each Party shall fully cooperate with
the other and its accountants in connection with the preparation of timely and
complete audited and unaudited financial statements relating to the financial
disclosure of the Merger in accordance with the rules under Regulation S-X and
Form 8-K promulgated under the Securities Exchange Act of 1934, as amended. Each
Party agrees that any information provided pursuant to this Section will not be
used for any purpose other than in connection with the transactions contemplated
by this Agreement, will not be revealed to third parties but will be kept
strictly confidential, pursuant to the provisions of Section 5.01(e), above, and
will be returned, together with all copies of such information, to the other
Party if, for any reason, the Closing does not take place.
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ARTICLE VI
CONDITIONS
Section 6.01 Mutual Conditions. The obligations of each of the Parties
to consummate the Merger and the other transactions contemplated by this
Agreement shall be subject to fulfillment of all of the following conditions:
(a) No Adverse Proceeding. No temporary restraining order,
preliminary or decree which prevents the consummation of the Merger or the other
transactions contemplated by this Agreement shall have been issued and remain in
effect, and no statute, rule or regulation shall have been enacted by any state
or federal government or governmental agency which would prevent the Merger or
the other transactions contemplated by this Agreement.
(b) Corporate Action. All corporate action necessary to
authorize the execution and delivery of this Agreement and consummation of the
Merger, including without limitation the approval of this Agreement by the
requisite vote of the shareholders of REXX, shall have been duly and validly
taken. The shareholders of TWGI, WAC and RAC shall have approved the execution
and delivery of this Agreement.
(c) Governmental Approvals. Any governmental or other
approvals or review of this Agreement or the transactions contemplated by this
Agreement required under any applicable laws, statutes, orders, rules,
regulations, or policies, or any guidelines promulgated thereunder, shall have
been received.
(d) Tax Opinion. REXX shall have received an opinion of
Messrs. ▇▇▇▇▇ ▇▇▇▇, in form and substance satisfactory to REXX, dated the
Effective Time, which opinion may be based on appropriate representations of
TWGI and REXX, to the effect that the Merger will be treated as a transaction
described in Section 351 of the Code and that no gain or loss is expected to be
recognized by the shareholders of REXX who exchange REXX Common Stock solely for
TWGI Common Stock pursuant to the Merger.
(e) Acquisition of REXX Stock. Within the thirty (30) days
prior to the Effective Time of the Merger, the shareholders of TWGI shall not
have sold, transferred or otherwise disposed of, or in any way reduced their
risk with respect to any shares of REXX Common Stock.
(f) Effective Registration Statement. The Registration
Statement (including any post-effective amendments thereto) shall be effective
under the Securities Act, and TWGI shall have received all state "Blue Sky"
securities permits or other authorizations, or confirmations as to the
availability of an exemption from state registration or qualification
requirements as may be necessary for consummation of the Merger, and no
proceedings shall be pending or to the knowledge of TWGI threatened by the SEC
or any state "Blue Sky" securities administration to suspend the effectiveness
of such Registration Statement or any state permit or authorization.
33
Section 6.02 Conditions to Obligations of TWGI. The obligations of TWGI
to consummate the Merger and the other transactions contemplated by this
Agreement shall be subject to the fulfillment of all of the following
conditions, unless waived by TWGI in writing:
(a) Representations and Warranties. The representations
and warranties of REXX set forth in Article III of this Agreement shall be true
and correct as of the date of this Agreement and as of the Effective Time as
though made at and as of the Effective Time except where any untruth or
inaccuracy could not, either individually or in the aggregate, have a REXX
Material Adverse Effect.
(b) Performance of Agreement. REXX shall have performed
and observed in all material respects all obligations and conditions to be
performed or observed by it under this Agreement at or prior to the Effective
Time.
(c) No Action. No Action before any court or governmental
body will be pending or threatened wherein a judgment, decree or order would
prevent any of the transactions contemplated hereby or cause such transactions
to be declared unlawful or rescinded.
(d) Consummation of ▇▇▇▇▇▇▇ Sale. REXX shall have
consummated the ▇▇▇▇▇▇▇ Sale in a manner materially consistent with the
agreement between REXX and the Buyers dated June 10, 1999. In addition, REXX
shareholders holding not more than seven percent (7%) of REXX Common Stock shall
have elected dissenters' rights as may be permitted by law in connection with
the vote for the approval of the ▇▇▇▇▇▇▇ Sale.
(e) Voting Agreements. The REXX Voting Agreements shall
have signed and delivered.
(f) Officers' Certificate. REXX shall have furnished to
TWGI a certificate, dated the Effective Date, signed by the President of REXX,
to the effect that all conditions set forth in Article VI, insofar as they
relate to REXX, have been fulfilled.
(g) Opinion of Counsel. TWGI shall have received an
opinion, addressed to it and dated the Effective Date, from Tashlik, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.C., counsel for REXX, to the following effect:
(i) REXX is incorporated, validly existing and in good standing under
the laws of the State of New York, and has full power and authority to carry on
its business as now conducted and to own or lease or operate its properties;
(ii) this Agreement has been duly authorized by all necessary corporate
action on the part of REXX and constitutes a valid and binding obligation of
REXX;
(iii) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with or result in a
violation of, or constitute a default under, any provision of the Certificate of
Incorporation and Bylaws of REXX, or any judgment, order or decree applicable to
REXX; and
34
(iv) no consent, approval, order or authorization of, or declaration or
filing with, any governmental authority or other person is required in
connection with the execution and delivery of this Agreement by REXX or the
consummation on the part of REXX of the transactions contemplated by this
Agreement, except for such consents, approvals, orders or authorizations as
shall have been obtained or declarations and filings as shall have been made
prior to the Effective Time.
In rendering such opinion, such counsel may rely (without independent
investigation) to the extent such counsel deems reliance necessary or
appropriate, as to matters of fact, upon representations and certificates of
public officials and of any executive officer of REXX.
(h) Listing of Shares. TWGI shall have received the
approval from either the American Stock Exchange or The NASDAQ Stock Market for
the listing of the TWGI Common Stock as the successor issue to the REXX Common
Stock or pursuant to a new listing application.
(i) Defined Contribution Plans. Before the Effective Time,
REXX and its Affiliates shall distribute all assets of each retirement plan and
associated trust maintained for the benefit of their employees. In addition,
before the Effective Time, REXX shall prepare or cause to be prepared all
required final tax returns and file all such returns required by the Code.
(j) The note held by the Bank of Mississippi in the amount
of $456,068.83, secured by REXX's property in Mantachie, Mississippi, due on
February 10, 2000, shall have been renegotiated or extended for a minimum of 12
months beyond such due date upon terms and conditions no less favorable to REXX
as previously.
Section 6.03 Conditions to Obligations of REXX. The obligations of REXX
to consummate the Merger and the other transactions contemplated by this
Agreement shall be subject to the fulfillment of all of the following
conditions, unless waived by REXX in writing:
(a) Representations and Warranties. The representations
and warranties of TWGI set forth in Article IV of this Agreement shall be true
and correct as of the date of this Agreement and as of the Effective Time as
though made at and as of the Effective Time except where any untruth or
inaccuracy could not, either individually or in the aggregate, have a Material
Adverse Effect.
(b) Performance of Agreement. TWGI shall have performed
and observed in all material respects all obligations and conditions to be
performed or observed by them under this Agreement at or prior to the Effective
Time.
(c) Financial Statements. TWGI shall have delivered to
REXX the TWGI Financial Statements.
35
(d) Continuation of Business. Between the date hereof and
the Closing Date, except as otherwise provided herein, TWGI and Affiliates shall
have operated their businesses in the normal course, consistent with past
practice, and shall not have suffered any damage, destruction, loss or
occurrence, whether covered by insurance or not, which may result in a TWGI
Material Adverse Effect.
(e) Opinion of Counsel. REXX shall have received an
opinion, addressed to it and dated the Effective Date, from ▇▇▇▇▇ ▇▇▇▇, counsel
for TWGI, RAC, WAC, WI, WII, BJB Holdings, WA, WP, WG, W Capital, Win, WLA and
WNY to the following effect:
(i) each of TWGI, WI, WII, BJB Holdings, W Capital, WAC and RAC is
incorporated, validly existing and in good standing under the laws of the State
of New York. Each of TWGI and RAC has full power and authority to carry on its
business as now conducted and to own or lease its properties;
(ii) this Agreement has been duly authorized by all necessary corporate
action on the part of TWGI, WAC and RAC and constitutes a valid and binding
obligation of TWGI, WAC and RAC;
(iii) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with or result in a
violation of, or constitute a default under, any provision of the Certificate of
Incorporation and Bylaws of TWGI, WAC or RAC or any judgment, order or decree
applicable to TWGI, WAC or RAC;
(iv) no consent, approval, order or authorization of, or declaration or
filing with, any governmental authority or other person is required in
connection with the execution and delivery of this Agreement by TWGI, WAC or RAC
or the consummation on the part of TWGI and RAC of the transactions contemplated
by this Agreement, except for such consents, approvals, orders or authorizations
as shall have been obtained or registrations, declarations and filings as shall
have been made prior to the Effective Time;
(v) each of WA, WP, WG, Win, WLA and WNY is a limited liability
company, validly existing and in good standing under the laws of the respective
states of its organization. Each of WA, WP, WG, WIn, WLA and WNY has full power
and authority to carry on its business as now conducted. To such counsel's
knowledge, each of WA,WP, WIn and WLA is certified as a certified capital
company pursuant to the laws of New York, Florida, Wisconsin and Louisiana,
respectively;
(vi) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with or result in a
violation of, or constitute a default under, any provision of the Articles of
Organization and Operating Agreements of WA, WP, WG, WIn, WLA and WNY or any
judgment, order or decree applicable to them; ; and
(vii) no consent, approval, order or authorization of, or declaration
or filing with, any governmental authority or other person is required in
connection with the consummation on the part of WA, and WP, WG, WIn, WLA and WNY
of the transactions contemplated by this Agreement, except for such consents,
approvals, orders or authorizations as shall have been obtained.
36
In rendering such opinion, such counsel may rely (without independent
investigation) to the extent such counsel deems reliance necessary or
appropriate, as to matters of fact, upon representations and certificates of
public officials and of the officers of TWGI, RAC, WAC, BJB,WA, WP, WG, WIn, WLA
and WNY.
(f) Employment Agreements. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall each have executed an Employment Agreement,
substantially in the form of Exhibit E attached hereto.
(g) Contribution of WI and WII to BJB Holdings. All of the
outstanding equity securities of WI and WII shall have been contributed to BJB
Holdings.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
Section 7.01 Termination. This Agreement may be terminated at any time
prior to the Effective Time, (a) by mutual written consent of REXX and TWGI; or
(b) by either non-breaching Party if either Party shall have breached or failed
to perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement which is incapable of
being cured by either Party or is not cured within 45 days of written notice
thereof or (c) if the REXX shareholders fail to approve the Proxy Actions.
Section 7.02 Effect of Termination. In the event of termination of this
Agreement by either REXX or TWGI as provided in Section 7.01, this Agreement
shall except as provided in this Section forthwith become void and have no
effect, without any liability or obligation of the part of REXX, TWGI, WAC or
RAC; provided, however, that if this Agreement is terminated (a) due to the
failure of the REXX shareholders to approve the Proxy Actions, REXX shall
reimburse TWGI for its actual and reasonable expenses, including reasonable
attorney's fees, incurred in connection with the transactions contemplated by
this Agreement, in an amount not to exceed $85,000; or (b) by REXX due to the
failure of TWGI to obtain effectiveness from the SEC of the Registration
Statement within a commercially reasonable period (other than due to any action
or condition of REXX or any of its current or former officers, directors or
affiliates), TWGI shall reimburse REXX for its actual and reasonable expenses,
including reasonable attorney's fees, incurred in connection with the
transactions contemplated by this Agreement, in an amount not to exceed $50,000.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Notices. All notices and other communications under this
Agreement to any Party shall be in writing and shall be deemed given when
delivered personally to that Party, sent by facsimile transmission (with
electronic confirmation) to that Party at the facsimile number for that Party
set forth below, mailed by certified mail (postage prepaid and return receipt
requested) to that Party at the address for that Party set forth below, or
delivered by Federal Express or any similar express delivery service for
delivery to that Party at that address:
37
If to REXX:
REXX Environmental Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman of the Board
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
With a copy to:
Tashlik, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇. Tashlik, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to TWGI:
TWG, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Any Party may change its facsimile number or address for notices under this
Agreement at any time by giving the other Parties notice of such change.
Section 8.02 Non-Waiver. No failure by any Party to insist upon strict
compliance with any term or provision of this Agreement, to exercise any option,
to enforce any right, or to seek any remedy upon any default of any indemnifying
party shall affect, or constitute a waiver of, the first Party's right to insist
upon such strict compliance, exercise that option, enforce that right, or seek
that remedy with respect to that default or any prior, contemporaneous, or
subsequent default. No custom or practice of the Parties at variance with any
provisions of this Agreement shall affect or constitute a waiver of any Party's
right to demand strict compliance with all provisions of this Agreement.
38
Section 8.03 Genders and Numbers. Where permitted by the context, each
pronoun used in this Agreement includes the same pronoun in other genders and
numbers, and each noun used in this Agreement includes the same noun in other
numbers.
Section 8.04 Headings. The headings of the various Articles and
Sections of this Agreement are not part of the context of this Agreement, are
merely labels to assist in locating such Articles and Sections, and shall be
ignored in construing this Agreement.
Section 8.05 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same Agreement.
Section 8.06 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior or contemporaneous discussions, negotiations,
agreements and understandings (both written and oral) among the Parties with
respect to the subject matter hereof and thereof.
Section 8.07 No Third-Party Beneficiaries. Nothing contained in this
Agreement, express or implied, is intended or shall be construed to confer upon
or give to any person, firm, corporation or legal entity, other than the
Parties, any rights, remedies or other benefits under or by reason of this
Agreement.
Section 8.08 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of law. REXX and TWGI hereby irrevocably submit to
the jurisdiction and venue of any Federal or State court located in New York or
Nassau County, New York, over any dispute arising out of this Agreement and
agree that all claims in respect of such dispute or proceeding may be heard and
determined in any such court. REXX and TWGI hereby irrevocably waive, to the
fullest extent permitted by applicable law, any objection which they may have to
the venue of any such dispute brought in any such court or any defense of
inconvenient forum for the maintenance of such dispute. REXX and TWGI hereby
consent to process being served by them in any site, action or proceeding by
delivering it in the manner specified by the provisions of Section 8.01 of this
Agreement. All rights and remedies of each Party under this Agreement shall be
cumulative and in addition to all other rights and remedies which may be
available to the Party from time to time, whether under this Agreement or
otherwise.
Section 8.09 Binding Effect; Assignment. This Agreement shall be
binding upon, inure to the benefit of and be enforceable by and against the
Parties and their respective heirs, personal representatives, successors and
assigns. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be transferred or assigned by any of the Parties
without the prior written consent of the other Parties.
Section 8.10 Expenses. Subject to the following paragraph, and except
as otherwise specifically provided in this Agreement:
(a) REXX shall pay its costs and expenses associated with
the transactions contemplated by this Agreement, including without limitation
the fees and expenses of its legal counsel, accountants and financial advisors,
and costs and expenses of filing the Proxy Statement with the SEC and printing
and mailing the Proxy Statement to REXX shareholders.
39
(b) TWGI shall pay its own costs and expenses associated
with this Agreement, the Merger, and the other the transactions contemplated by
this Agreement, including without limitation the fees and expenses of its legal
counsel, accountants and financial advisors, and costs and expenses of filing
the Registration Statement with the SEC.
Section 8.11 Public Announcements. Neither REXX nor TWGI shall, without
the prior written consent of REXX and TWGI, make any public announcement or
statement with respect to the transactions contemplated in the Agreement, except
as may be necessary to comply with applicable requirements of the federal or
state securities laws or any governmental order or regulation or any obligations
pursuant to any listing agreement with any national securities exchange.
Section 8.12 Severability. With respect to any provision of this
Agreement finally determined by a court of competent jurisdiction to be
unenforceable, such court shall have jurisdiction to reform such provision so
that it is enforceable to the maximum extent permitted by applicable law, and
the Parties shall abide by such court's determination. In the event that any
provision of this Agreement cannot be reformed, such provision shall be deemed
to be severed from this Agreement, but every other provision of this Agreement
shall remain in full force and effect.
Section 8.13 Modification of Structure. Notwithstanding any provision
of this Agreement to the contrary, TWGI may prior to the Effective Time modify
the structure of the transactions contemplated by this Agreement provided that
REXX agrees to such changes; REXX agrees that its approval will not be
unreasonably withheld as long as (i) the consideration to be paid to holders of
REXX Common Stock under this Agreement is not thereby reduced, (ii) such
modification will not be likely materially to delay or jeopardize receipt of
required regulatory clearances, and (iii) such modification does not change the
tax-deferred status of the transactions contemplated pursuant to the Merger.
Section 8.14 The Sloane Organization, LLC. In all cases where reference
is made in this Agreement to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, the parties agree that such
reference shall also include The Sloane Organization, LLC, a New York limited
liability company, of which ▇▇. ▇▇▇▇▇▇ is the sole managing member.
* * * * * * *
[signature page follows)
40
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day and year first above written.
REXX ENVIRONMENTAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
TWG, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer, Chief Financial Officer
The undersigned hereby ratifies and adopts the foregoing Agreement,
effective as of the date set forth below.
REXX ACQUISITION CORP.
Date: ________________ By:__________________________________
Title:
WHITESTONE ACQUISITION CORP.
Date: ________________ By:__________________________________
Title:
41