STOCK EXCHANGE AGREEMENT
This Agreement ("Agreement") is made and entered into on March 5, 1998,
by and among NEW HORIZONS, INC., a Delaware corporation, as the acquired
company ("NEW HORIZONS"); WHITNEY AMERICAN CORPORATION, a Delaware
corporation, as the acquiring company (the "WHAM"); and those persons
executing this Agreement in their capacity as shareholders of NEW HORIZONS
(the "Shareholders").
WHEREAS, WHAM wishes to acquire and the Shareholders wish to transfer all
the issued and outstanding stock of NEW HORIZONS in a transaction intended to
qualify as a reorganization within the meaning of I.R.C. Section 368(a)(1)(B),
as amended.
NOW, THEREFORE, WHAM, NEW HORIZONS and the Shareholders adopt this plan
of reorganization and agree as follows:
1. Certain Definitions. As used herein and in any exhibit or
schedule incorporated herein, or in any document, certificate or opinion
required to be delivered pursuant to this Agreement, the following terms shall
have the meanings ascribed below.
(a) "Closing Date" means the date at which Closing hereunder
shall occur, which date shall be March 6, 1998, or any other date which may be
mutually agreed upon by the parties hereto.
(b) "Closing" means the settlement and consummation of the
purchase transaction contemplated hereby to be held at 2:00 p.m. Eastern
Standard Time on the Closing Date at the offices of Xxxx X. Xxxxxxx, Xx.,
Esq., counsel for WHAM, 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, or
at such other place as may be mutually agreed upon by the parties hereto.
(c) "NEW HORIZONS Shares" means One Hundred(100%) percent of the
issued and outstanding capital stock of NEW HORIZONS to be delivered to WHAM
at the Closing.
2. Exchange of Stock
(a) Exchange. Subject to the terms and conditions herein set
forth, at the Closing on the Closing Date;
(i) The Shareholders agree to transfer to WHAM the number
of NEW HORIZONS Shares, without par value, shown opposite their names in
Exhibit A, in exchange for an aggregate of One Million Seven Hundred Fifty
Thousand (1,750,000) shares of voting common stock of WHAM, $0.00001 par value
per share, (the "Exchange Shares"), to be issued at the Closing to the
Shareholders in the numbers shown opposite their names in Exhibit A.
(ii) The transfer of NEW HORIZONS Shares by the
Shareholders shall be effected by the delivery to WHAM at the Closing of
certificates representing the transferred shares endorsed in blank.
(iii) At the Closing and from time to time thereafter the
Shareholders shall execute such additional instruments and take such other
action as WHAM may request in order more effectively to sell, transfer, and
assign the transferred stock to WHAM and to confirm WHAM's title thereto.
(b) Restricted Status of Exchange Shares. The Exchange Shares
have not been registered under the Securities Act of 1933, as amended ("Act"),
in reliance upon exemptions from registration provided by Section 4(2) of the
Act and Rule 506 under the Act and under the securities or blue sky laws of
applicable states or any rules or regulations promulgated thereunder, on the
grounds that the transactions contemplated in this Agreement do not involve
any public offering. The Exchange Shares are "restricted securities" as that
term is defined in Rule 144(a) of the General Rules and Regulations under the
Act and must be held indefinitely, unless they are subsequently registered
under the Act or an exemption from such registration requirements is available
for their resale. The prior written consent of WHAM will be necessary for any
transfer of any or all of the Exchange Shares, unless the shares have been
duly registered under the Act or the transfer is made in accordance with Rule
144 or other available exemption under the Act. Further, any and all
certificates which are issued representing Exchange Shares shall, unless and
until removed in accordance with law, bear a restrictive legend substantially
in the following form:
"The shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are "restricted
securities" as that term is defined in Rule 144 under the Act. These shares
may not be offered for sale, sold or otherwise transferred except pursuant to
an effective registration statement under the Act, or pursuant to an exemption
from registration under the Act, the availability of which must be established
to the satisfaction of the Company's counsel."
(c) Officers and Directors of WHAM. At the Closing, the current
officers and directors of WHAM shall resign and the persons below shall be
elected as the directors and executive officers of WHAM:
Name Position
1.Xxxx X. Xxxxxxxxx Chairman of the Board, Chief
Executive Officer
2.Xxxxxx X. Xxxxxxxxx, Xx. Executive Vice President, Director
3. Xxxxxxxxxxx Xxxxxxx Executive Vice President, Chief
Operating Officer, Director
4. Xxxx X. Xxxxx Director
5. Xxxxx Xxxxxxxxxx Director
6. Xxxxxxx Xxxxxxxx Director
7. Xxxx Xxxxxxxx Assistant Secretary/Treasurer,
Director
3. Representations and Warranties of NEW HORIZONS and the
Shareholders. NEW HORIZONS and the Shareholders make to WHAM the following
representations and warranties, in reliance upon which WHAM has entered into
this Agreement.
(a) Each Shareholder represents and warrants that he, she or it is
not now insolvent and will not be insolvent after selling and delivering the
NEW HORIZONS Shares to WHAM on the terms of this Agreement, and that he, she
or it is receiving new consideration at least equal to the full and fair value
of the NEW HORIZONS Shares being sold.
(b) NEW HORIZONS and the Shareholders understand and acknowledge
that (i) there is no active trading market in the common stock of WHAM,
although quoted name-only on the OTC Board, (ii) WHAM is a shell company with
no cash or other assets, no operations and no full-time or experienced
management, (iii) no person currently an officer, director or shareholder of
or professional adviser to WHAM has made any representation whatsoever to any
Shareholder relating to WHAM's stock price, operations, profitability or
prospects following the Closing, (iv) persons designated by NEW HORIZONS
and/or the Shareholders will become the officers and directors of WHAM at the
Closing, and no person now an officer or director of WHAM will be such after
the Closing or have any responsibility or input as to operations after the
Closing, the officers and directors of WHAM solely responsible for its
operations and success will be persons designated by NEW HORIZONS and the
Shareholders, and (v) the Exchange Shares are speculative and involve a high
degree of risk.
(c) Each Shareholder acknowledges and agrees that he, she or it
have been furnished with substantially the same kind of information regarding
WHAM and its assets, financial condition and plan of operation as would be
contained in a registration statement and included prospectus prepared in
connection with a public offering of the Exchange Shares and has reviewed all
information concerning WHAM publicly available on the website maintained by
the Securities and Exchange Commission. Each Shareholder further represents
that he, she or it has had an opportunity to ask questions of and receive
answers from WHAM and its officers and directors regarding WHAM and its
assets, financial condition and plan of operation and the terms and conditions
of the issuance of the Exchange Shares.
(d) The Shareholder, alone or together with the Shareholder's
adviser(s), have such knowledge and experience in financial, tax and business
matters as to enable Shareholder to utilize the information made available by
WHAM, in connection with the Exchange and issuance of the Exchange Shares, to
evaluate the merits and risks of acquiring the Exchange Shares and to make an
informed investment decision with respect thereto.
(e) Each Shareholder agrees that he, she or it was not solicited by
WHAM by any form of general solicitation or general advertising, including but
not limited to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio, or made available over telephone lines by any information
service, or any seminar or meeting whose attendees had been invited by any
means of general solicitation or general advertising.
(f) Except as expressly set forth in this Agreement and any
Schedules, Exhibits or other attachments hereto, WHAM has not made any
representation or warranty to any Shareholder in connection with this
Agreement, and WHAM has made no communication to any Shareholder that
constitutes tax or investment advice.
(g) Authority. The Shareholders have valid and marketable title
to the NEW HORIZONS Shares free and clear of any claims, liens, trusts,
encumbrances, rights or interests of any person. The Shareholders have the
right, power, and authority to enter into, and perform their respective
obligations under this Agreement. This Agreement has been and as of the
Closing Date will be, duly and validly authorized, executed and delivered on
behalf of the Shareholders, have all requisite power and authority to
consummate the transactions contemplated herein. This Agreement is the valid
and binding obligation of the Shareholders. No third-party approvals or
consents of any kind are necessary in connection with this Agreement.
(h) Organization and Good Standing. NEW HORIZONS is duly
organized, validly existing and in good standing under the laws of the State
of Delaware and has full charter power to carry on its business as it is now
being conducted and to own and operate the properties now owned, operated or
leased by it. NEW HORIZONS is qualified to do business as a foreign
corporation in every state in which the nature of the business carried on and
properties owned or leased by them presently requires them to be so qualified
in any other jurisdiction.
(i) Capitalization. The authorized capitalization of NEW
HORIZONS consists of One Thousand (1,000) shares of Common Stock, $0 par value
per share. As of the date hereof, NEW HORIZONS has issued and outstanding
1,000 shares of such Common Stock. All of such issued and outstanding shares
have been duly and validly issued, are fully paid and non-assessable and were
issued and sold pursuant to, and within limitations contained in, appropriate
permits and consents of each governmental authority from whom any permit or
consent was required.
(j) Title to NEW HORIZONS Shares. The Shareholders have good
and valid title to all of the issued and outstanding common stock of NEW
HORIZONS, free and clear of all claims, liens, mortgages, charges, security
interests, encumbrances and other restrictions or limitations of any kind
whatsoever. The Shareholders are not a party to, or bound by, any other
agreement, instrument or understanding restricting the transfer of such
interests.
(k) Financial Statements. Attached hereto and incorporated
herein by this reference, is the unaudited consolidated Financial Statements
of NEW HORIZONS for the year ended December 31, 1997 (the "Financial
Statements"). Said Financial Statements (i) were prepared in accordance with
the books and records of NEW HORIZONS; (ii) were prepared in accordance with
generally accepted accounting principles consistently applied; and (iii) sets
forth fairly NEW HORIZONS's financial condition and the results of its
operations as of the relevant dates thereof and for the periods covered
thereby. Except as to the extent reflected or reserved against in the
Financial Statements, NEW HORIZONS as of the date thereof had no liability or
obligation of any nature, whether accrued, absolute, contingent or otherwise,
including without limitation, tax liabilities due or to become due and whether
incurred in respect of or measured by the income of NEW HORIZONS for any
period prior to such date, or arising out of any transaction entered into, or
any state of facts existing, prior hereto. Since the date of such Financial
Statements, no credit or charge has been made to any surplus account of NEW
HORIZONS.
(l) Events Subsequent to December 31, 1997. Since December 31,
1997, absent a written disclosure delivered to WHAM, there has not been any:
(i) material adverse change in the financial condition,
liabilities, assets, business, or prospects of NEW HORIZONS;
(ii) destruction, damage to, or loss of any asset of NEW
HORIZONS that may substantially affect the financial condition, business, or
prospects of NEW HORIZONS;
(iii) change in accounting methods or practices (including,
without limitation, any change in inventory accounting or in depreciation or
amortization policies or rates) by NEW HORIZONS;
(iv) revaluation by NEW HORIZONS of any of its assets;
(v) declaration, setting aside, or payment of a dividend or
other dividend or other distribution in respect to the capital stock of NEW
HORIZONS, or any direct or indirect redemption, purchase, or other acquisition
by NEW HORIZONS of any of its shares of capital stock;
(vi) any other transaction by NEW HORIZONS except in the
ordinary course of business;
(vii) direct or indirect increase in the salary or other
compensation payable or to become payable by NEW HORIZONS to any of its
officers, directors or employees, or the declaration, payment or commitment or
obligations of any kind for the payment by NEW HORIZONS of a bonus or other
additional salary or compensation to any such person;
(viii) sale or transfer of any single asset of NEW HORIZONS
having a value in excess of $1,000;
(ix) amendment or termination of any contract, agreement,
or license to which NEW HORIZONS is a party except in the ordinary course of
business;
(x) loan by NEW HORIZONS to any person or entity, or
guaranty by NEW HORIZONS of any loan;
(xi) mortgage, pledge, or other encumbrance of any asset
of NEW HORIZONS;
(xii) waiver or release of any right or claim of NEW
HORIZONS;
(xiii) issuance or sale by NEW HORIZONS of any shares of
NEW HORIZONS's capital stock;
(xiv) bid submitted or sales contract entered into or any
other contract or agreement entered into involving more than $1,000 in each
case, except in the ordinary course of business;
(xv) obligation or debt incurred in excess of $1,000.
(m) Liabilities. NEW HORIZONS has no known debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
whether due or to become due, that is not fully provided or reserved for in
the Financial Statements, including the notes thereto, except for those (1)
that may have been incurred after the date of the Financial Statements in the
ordinary course of business, or (2) that are not required by generally
accepted accounting principles to be included in the Financial Statements.
All debts, liabilities and obligations incurred after the date of the
Financial Statements were incurred in the ordinary course of business and not
in violation of any provision of this Agreement, are usual and normal in
amount both individually and in the aggregate.
(n) Taxes. Within the time and in the manner prescribed by law,
NEW HORIZONS has filed all Federal, state and local tax returns required by
law and have paid all taxes, assessments, and penalties due and payable. The
Shareholders shall cause NEW HORIZONS (i) to prepare and file all Federal,
state and local income tax returns for NEW HORIZONS required to be filed
through the Closing Date covering the most recent taxable period; (ii) to pay
all taxes, penalties and assessments related to such returns, and upon filing
thereof shall promptly supply copies of such returns to WHAM. The provision
for taxes reflected in the Financial Statements are adequate for any and all
federal, state, county, and local taxes for the period ending on the date of
such Financial Statements and for all prior periods, whether or not disputed,
including without limitation any and all taxes that may be assessed by the
Internal Revenue Service as a result of an audit of the Company's tax
returns. There are no present disputes as to taxes of any nature payable by
NEW HORIZONS or with respect to the NEW HORIZONS Shares. On or before the
Closing Date, NEW HORIZONS shall have furnished to WHAM, in form satisfactory
to it, true and accurate copies of all Federal, state and local tax returns,
filings, waivers, elections and deficiency notices for each of the past fiscal
year of NEW HORIZONS and a true and complete copy of the unaudited
consolidated and consolidating balance sheets of NEW HORIZONS as of January
31, 1998 ("Current Balance Sheet").
(o) Title to Properties and Assets. NEW HORIZONS has good and
marketable title to its properties and assets, including the properties and
assets reflected in the Current Balance Sheet referred to above (except as
since disposed of in the ordinary course of business) subject to no liens,
mortgages, encumbrances or charges which are not reflected in the Current
Balance Sheet or which, either in any case or in the aggregate, are
substantial in amount or which materially detract from the value of the
property subject thereto or which materially impair the operation of NEW
HORIZONS, or which have not arisen otherwise than in the ordinary course of
business. No personal property needed by NEW HORIZONS for the conduct of its
business is held under any lease, security agreement, conditional sales
contract, or other title retention or security arrangement, or is located
other than in the possession and under the control of NEW HORIZONS. The
tangible personal property reflected in those books and records constitutes
all such tangible personal property necessary for the conduct by NEW HORIZONS
of its business as now conducted.
(p) Proprietary Rights. NEW HORIZONS owns or possesses adequate
licenses or other rights to use all patents, patent applications, trademarks,
trademark applications, trade secrets, service marks, trade names, copyrights,
inventions, drawings, designs, customer lists, proprietary know-how or
information, or other rights with respect thereto (collectively referred to as
"Proprietary Rights"), used by it and the same are sufficient to conduct such
business as it has been and is now being conducted. The operations of NEW
HORIZONS neither conflict with nor infringe, and no one has asserted to NEW
HORIZONS that such operations conflict with or infringe, any intangible
property rights owned, possessed or used by any third party which are of the
same kind as the Proprietary Rights. There are no claims, disputes, actions,
proceedings, suits or appeals pending against NEW HORIZONS with respect to any
Proprietary Rights and none has been threatened against NEW HORIZONS. To the
best knowledge of NEW HORIZONS (after reasonable investigation), there are no
facts which would result in any claim which would have an adverse effect on
the condition (financial or otherwise), business, net worth, assets,
properties or operations of NEW HORIZONS based on an assertion that NEW
HORIZONS does not have the unrestricted right to use, free of any rights or
claims of others, all Proprietary Rights.
(q) Insurance. Prior to the Closing Date, NEW HORIZONS shall
have delivered, in form satisfactory to WHAM pursuant to this subparagraph, a
certificate or certificates of all insurance coverage of NEW HORIZONS. Such
certificates evidence policies of fire, liability and other forms of casualty
insurance and workmen's compensation insurance held by NEW HORIZONS. Such
policies will be maintained in force and in effect by NEW HORIZONS in present
amounts up to and including the Closing Date. NEW HORIZONS is not in material
default under any of such policies.
(r) Contracts. The Shareholders have previously submitted a
list of all written contracts and bids and as further detailed and a summary
of all oral contracts and bids of the following categories to which NEW
HORIZONS is a party:
(i) Contracts not made in the ordinary course of business
(excluding this Agreement and the Exhibits hereto), and all material
contracts, whether or not made in the ordinary course of business;
(ii) Employment contracts;
(iii) Contracts with a labor union or association;
(iv) Bonus, pension, profit sharing, retirement, stock
purchase, stock option, hospitalization, insurance or similar plans providing
employee benefits;
(v) Distribution, franchise, sales agency or advertising
contracts;
(vi) Output or requirements agreements;
(vii) Any indenture, mortgage deed of trust or lease;
(viii) Options with respect to any property, real or
personal, whether as grantor or grantee;
(ix) Contracts or outstanding bids involving potential
expenditures or liabilities of NEW HORIZONS in excess of $1,000.00;
(x) Contracts continuing over a period of more than one (1)
year from their respective dates;
(xi) Contracts or commitments relating to commission
arrangements with others;
(xii) Patent, trade name, and all other license agreements,
to which NEW HORIZONS is a party, either as licensor or licensee;
(xiii) Contracts containing covenants limiting the freedom
of NEW HORIZONS to compete in any line of business or with any person; and
(xiv) Agreements evidencing all indebtedness.
There is no default or event that with notice or lapse of time, or both, would
constitute a default by NEW HORIZONS, or to NEW HORIZONS's knowledge, any
other party to any of these agreements. NEW HORIZONS has received no notice
that any party to any of these agreements intends to cancel or terminate any
of these agreements. NEW HORIZONS is not a party to, nor is NEW HORIZONS or
the property of NEW HORIZONS bound by any agreement that is materially adverse
to the business, properties or financial condition of NEW HORIZONS. NEW
HORIZONS is not a party to any significant contract except as provided in
writing.
(s) Banks. Prior to the execution of this Agreement, the
Shareholders have delivered to WHAM pursuant to this subparagraph a complete
list showing the name of each bank in which NEW HORIZONS maintains accounts
(including a description of the account), certificates of deposit or safe
deposit boxes and the names of all persons authorized to draw thereon or to
have access thereto.
(t) Litigation. There is no action, suit or proceeding pending
before any court or governmental agency, authority or body and, to the
knowledge of NEW HORIZONS, there is no action, suit proceeding threatened or
pending which, if it were to result in a decision adverse to NEW HORIZONS,
would in the judgment of NEW HORIZONS result in any material adverse change in
the condition, financial or otherwise, business or prospects of NEW HORIZONS
or would materially adversely affect its properties or assets.
(u) No Resulting Breach or Default. The consummation of the
transactions contemplated by this Agreement will not result in or constitute
any of the following: (i) a default or any event that, with notice or lapse
of time or both, would be a default, breach, or violation of applicable law or
regulation or of the Articles of Incorporation or Bylaws of NEW HORIZONS, or
any judgment, order, writ, injunction, or decree of any court or governmental
authority or of any lease, license, promissory note, conditional sales
contract, commitment, indenture, mortgage, deed of trust, or other agreement,
instrument, or arrangement to which NEW HORIZONS is a party or by which its
property is bound; (ii) an event that would permit a party to terminate any
agreement or to accelerate the maturity of any indebtedness or other
obligation of NEW HORIZONS, or (iii) the creation or imposition of any
security interest, lien, charge, or encumbrance on any of the properties or
assets of NEW HORIZONS.
(v) Corporate Documents. NEW HORIZONS has furnished to WHAM for
its examination (i) copies of the Articles of Incorporation and Bylaws of NEW
HORIZONS, including all amendments, (ii) the complete minute books of NEW
HORIZONS of all meetings of the shareholders and Board of Directors of NEW
HORIZONS, (iii) the stock transfer books of NEW HORIZONS setting forth all
transfers of capital stock. The meetings of the Board of Directors and
Shareholders referred to therein were duly called and duly held and the
signatures appearing on all documents contained therein are the true
signatures of the person purporting to have signed the same. All documents
delivered hereto contain accurate records of all meetings and accurately
reflect all corporate action of the stockholders and directors of NEW
HORIZONS.
(w) Compliance with Other Instruments, etc.; None Burdensome.
To the best of the Shareholder's knowledge and belief, NEW HORIZONS is not in
violation of any term or provision of any charter, by-law, mortgage,
indenture, contract, agreement, instrument, judgment, decree, order,
injunction, statute, rule or regulation. The execution, delivery and
performance of and compliance with this Agreement and the NEW HORIZONS Shares
to be exchanged hereunder will not result in any such violation or be in
conflict with or constitute a default under any such term or provision, or
result in the creation of any mortgage, lien, encumbrance or charge upon any
of the properties or assets of NEW HORIZONS pursuant to any such term or
provision. There is no term or provision of this Agreement which materially
adversely affects the business, prospects, condition (financial or other), or
operations of NEW HORIZONS or any of its properties or assets.
(x) Indebtedness to Officers, Directors and Shareholders. NEW
HORIZONS is not indebted to any person who is an officer, director or
shareholder of NEW HORIZONS in any amount whatsoever other than for salaries
for services rendered or for reimbursable business expenses.
(y) Brokerage and Finder's Fees. NEW HORIZONS has not incurred
any unpaid liability to any broker, finder or agent for any brokerage fees,
finder's fees or commissions with respect to the transactions contemplated by
this Agreement.
(z) Full Disclosure. On or prior to the date of the execution
of this Agreement, the Shareholders have delivered or made available to WHAM
all of the material documents and contracts to which NEW HORIZONS is a party
which in any way affects any of the properties, assets or business of NEW
HORIZONS. Neither the Financial Statements referred to in subparagraph (e) of
this Paragraph nor any other certificate or statement furnished to WHAM by the
Shareholders or in behalf of NEW HORIZONS in connection with the transactions
contemplated hereby nor this Agreement contains any untrue statement of a
material fact, known as of the date thereof, or omits to state a material fact
necessary in order to make the statements contained therein or herein not
misleading. There is no known fact which materially adversely affects the
business, prospects or condition (financial or other) or operations of NEW
HORIZONS or any of its properties or assets which has not been set forth
herein or disclosed by the Financial Statements referred to herein or in any
certificate or statement furnished to WHAM by the Shareholders or in behalf of
NEW HORIZONS.
4. Conduct of NEW HORIZONS's Business Pending Closing. NEW HORIZONS
and the Shareholders hereby covenant and agree with WHAM that between the date
hereof and the Closing Date:
(a) NEW HORIZONS will not, without the prior written consent of
WHAM, amend or otherwise change its Articles of Incorporation or By-laws, or
any instrument similar in purpose and intent to them.
(b) The Shareholders will not, without the prior written consent
of WHAM, transfer or encumber in any way, voluntarily or involuntarily, any of
the NEW HORIZONS Shares.
(c) NEW HORIZONS will not declare or pay any dividend or make
any other distribution of assets of any kind whatsoever to any of its
shareholders in redemption of or as the purchase price for any of its capital
stock, or in discharge or cancellation, whether in whole or in part, of any
indebtedness, whether in payment of principal, interest or otherwise, owing to
any of such shareholders.
(d) NEW HORIZONS will conduct its business diligently in the
ordinary course, use its best efforts to preserve intact its business
organization, use its best efforts to retain in its employ all of its key
employees, and use its best efforts to preserve its relationships with its
suppliers and customers and others having business relations with it.
(e) NEW HORIZONS will not make any commitments for capital
expenditures or for indirect charges exceeding $1,000 except with respect to
expenditures required in the normal course of performing current contracts.
(f) NEW HORIZONS will not sell or transfer any of its assets,
cancel any debts or claims, or mortgage, pledge or subject to lien, charge or
encumbrance of any kind, except liens for taxes not due, any of its assets,
except in the ordinary course of business.
(g) NEW HORIZONS will not, except in the ordinary course of
business amend or terminate any material contract or agreement to which it is
a party, or enter into or become a party to any contract or agreement under
which (i) the value of services to be performed or the cost of goods to be
sold will exceed $1,000; or (ii) the reasonably anticipated costs and expenses
will exceed the anticipated receipts.
(h) NEW HORIZONS will continue in force its existing insurance
policies, subject only to variation in amounts required by the ordinary
operations of its business.
(i) NEW HORIZONS will not increase the compensation payable or
to become payable to any of its officers, directors, employees or agents, or
any bonus payment or similar arrangement made to or with any of such officers,
directors, employees or agents.
(j) NEW HORIZONS will not incur any indebtedness to any person
who is an officer, director or shareholder of NEW HORIZONS in any amount
whatsoever other than for salaries for services rendered or for reimbursable
business expenses.
(k) NEW HORIZONS and its representatives will keep confidential
any information not otherwise readily available from public sources which they
or their representatives obtain from WHAM concerning the properties, assets
and business of WHAM.
5. Representations and Warranties of WHAM. WHAM hereby makes the
following representations and warranties in reliance upon which the NEW
HORIZONS Shareholders have entered into this Agreement.
(a) Organization and Good Standing. WHAM is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and has full corporate power to carry on its business as it is now
being conducted and to own and operate the properties now owned, operated or
leased by it. WHAM is qualified to do business as a foreign corporation in
all states in which the nature of the business carried on and properties owned
or leased by WHAM requires WHAM to be so qualified in any other jurisdiction.
WHAM's filings with the Securities and Exchange Commission, Washington, D.C.
("SEC"), are current and have been timely filed. WHAM will ensure that the
latest Form 10-QSB, for the quarter ended February 28, 1998, is or will be
timely filed with the SEC.
(b) Authority. The execution of this Agreement by WHAM and its
delivery to the Shareholders has been duly authorized by the Board of
Directors of WHAM, and no further corporate action is necessary on the part of
WHAM to make this Agreement valid and binding upon WHAM in accordance with its
terms.
(c) Capitalization. The authorized capitalization of WHAM
consists of 50,000,000 shares of common stock, $0.00001 par value per share,
and 5,000,000 shares of preferred stock, $0.00001 par value per share, of
which 362,515 shares of Common are issued and outstanding, fully paid and
non-assessable, and no shares of preferred stock have been issued.
(d) Litigation. There is no action, suit or proceeding pending
before any court or governmental agency, authority or body and, to the
knowledge of WHAM, there is no action, suit proceeding threatened or pending
which, if it were to result in a decision adverse to WHAM, would in the
judgment of WHAM result in any material adverse change in the condition,
financial or otherwise, business or prospects of WHAM or would materially
adversely affect its properties or assets.
(e) No Defaults. The consummation of the transactions
contemplated by this Agreement will not result in or constitute any of the
following: (i) a default or any event that, with notice or lapse of time or
both, would be a default, breach, or violation of applicable law or regulation
or of the Articles of Incorporation or Bylaws of WHAM, or any judgment, order,
writ, injunction, or decree of any court or governmental authority or of any
lease, license, promissory note, conditional sales contract, commitment,
indenture, mortgage, deed of trust, or other agreement, instrument, or
arrangement to which WHAM is a party or by which its property is bound; (ii)
an event that would permit any party to terminate any agreement or to
accelerate the maturity of any indebtedness or other obligation of WHAM, or
(iii) the creation or imposition of any security interest, lien, charge, or
encumbrance on any of the properties or assets of WHAM.
6. Indemnification by the Shareholders. The Shareholders (hereafter
the "Seller Group"), jointly and severally, shall indemnify, defend and hold
harmless WHAM against and in respect of any and all actions, causes of action,
assessments, claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including any liabilities
for obligations which arise after the Closing Date based on events or
conditions occurring before the Closing Date, and interest, penalties and
reasonable attorneys' fees and expenses, that WHAM shall incur or suffer,
which arise, result from or relate to any inaccuracy in, or any breach of any
of the Seller Group's representations or warranties, or any failure by the
Seller Group to perform any of their covenants or agreements in this Agreement
or in any schedule, certificate, exhibit or other instrument furnished or to
be furnished by any of the Seller Group under this Agreement; provided,
however, that the right to indemnity as aforesaid with respect to a breach by
the Seller Group or any of their representations or warranties in this
Agreement shall be limited by the following: (i) such indemnity shall apply
only if the facts or circumstances resulting in such breach are such as to
result in damages to WHAM in excess of $10,000 in the aggregate; and (ii) such
right to indemnity shall apply only as to all claims giving rise to a right of
indemnity hereunder of which WHAM has received actual notice within
twenty-four (24) months after the Closing Date.
7. Indemnification by WHAM. Subject to the terms and conditions of
this Xxxxxxxxx 0, XXXX hereby agrees to indemnify, defend and hold harmless
the Shareholders and their respective successors, if any, and their officers,
directors and controlling persons, at any time after the Closing Date, from
and against all demands, claims, actions, or causes of action, assessments,
losses, damages, liabilities, costs and expenses, including, without
limitation, interest, penalties and attorneys' fees and expenses, which were
reasonably incurred by or imposed upon the Shareholders or NEW HORIZONS, net
of any insurance proceeds received by the Shareholders or NEW HORIZONS with
respect thereto, asserted against, resulting to, imposed upon or incurred by
the Shareholders or NEW HORIZONS, directly or indirectly, by reason of or
resulting from any misrepresentation, breach of any warranty, non-performance
or breach of any covenant, obligation or agreement of WHAM contained in this
Agreement; provided, however, that the right to indemnity as aforesaid with
respect to a breach by WHAM or any of its representations or warranties in
this Agreement shall be limited by the following: (i) such indemnity shall
apply only if the facts or circumstances resulting in such breach are such as
to result in damages to the Shareholders or NEW HORIZONS in excess of $10,000
in the aggregate; and (ii) such right to indemnity shall apply only as to all
claims giving rise to a right of indemnity hereunder of which the Shareholders
or NEW HORIZONS has received actual notice within twenty-four (24) months
after the Closing Date.
8. Claims by Third Parties. The obligations and liabilities of an
indemnifying party under any provision of this Agreement with respect to
claims relating to third parties shall be subject to the following terms and
conditions:
(a) Whenever any indemnified party shall have received notice
that a claim has been asserted or threatened against such indemnified party,
which, if valid, would subject the indemnifying party to an indemnity
obligation under this Agreement, the indemnified party shall promptly notify
the indemnifying party of such claim in the manner described in Paragraph 22;
provided, however, that the failure of the indemnified party to give timely
notice hereunder shall not relieve the indemnifying party of its
indemnification obligations under this Agreement unless, and only to the
extent that, such failure caused the damages for which the indemnifying party
is obligated to be greater than they would have been had the indemnified party
given timely notice.
(b) The indemnifying party or its designee will have the right
but not the obligation, to assume the defense of any claim described in
Paragraph 6 or 7 above, provided, however, the indemnified party shall have
the right at its option to defend and to compromise or settle such claim which
compromise or settlement shall be made only with the written consent of the
indemnifying party, such consent not be unreasonably withheld. If the
indemnifying party fails to assume the defense of such claim within 15 days
after receipt of notice of a claim pursuant to Paragraph 22, the indemnified
party against which such claim has been asserted will (upon delivering notice
to such effect to the indemnifying party) have the right to undertake, at the
indemnifying party's cost and expense, the defense, compromise or settlement
of such claim on behalf of and for the account and risk of the indemnifying
party, subject to the right of the indemnifying party to assume the defense of
such claim at any time prior to settlement, compromise or final determination
thereof and provided, however, that the indemnified party shall not enter into
any such compromise or settlement without the written consent of the
indemnifying party. In the event the indemnified party assumes defense of the
claim, the indemnified party will keep the indemnifying party reasonably
informed of the progress of any such defense, compromise or settlement. The
indemnifying party shall not be liable for any settlement of any action
effected without its consent, but if settled with the consent of the
indemnifying party or if there be a final judgment beyond review or appeal,
for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless an indemnified party from and against any loss or
liability by reason of such settlement or judgment. Any party who does not
undertake the defense of a claim may, at its own expense, retain such
additional attorneys and other advisors as it shall deem necessary, which
attorneys and advisors will be permitted by the party undertaking such
defense, and its attorneys, to observe the defense of such claim.
9. Indemnity for Taxes of Indemnified Party. Each party hereto
further agrees that, with respect to payment or indemnity under this Paragraph
9, such payment or indemnity shall include any amount necessary to hold the
indemnified party harmless on an after-tax basis from all taxes required to be
paid with respect to the receipt of such payment or indemnity under the laws
of any Federal, state or local government or taxing authority in the United
States, or under the laws of any foreign government of taxing authority or
governmental subdivision of a foreign country.
10. Shareholders' Representatives. The Shareholders hereby
irrevocably designate and appoint Xxxxxxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxxxx,
Xx., Esq., or either of them, as their agents and attorneys in fact
("Shareholders' Representatives"), with full power and authority until the
Closing to execute, deliver, and receive on their behalf all notices, requests,
and other communications hereunder; to fix and alter on their behalf the date,
time, and place of the Closing; to waive, amend, or modify any provisions of
this Agreement, and to take such other action on their behalf in connection with
this Agreement, the Closing, and the transactions contemplated hereby as such
agent or agents deem appropriate; provided, however, that no such waiver,
amendment, or modification may be made if it would decrease the number of shares
to be issued to the Shareholders or increase the extent of their obligation to
indemnify WHAM hereunder.
11. Conditions Precedent to Shareholders' Obligations. The obligations of
the Shareholders hereunder are subject to each of the conditions set forth below
being fulfilled on the Closing Date. Any of such conditions may, at the option
of the Shareholders, be waived:
(a) Opinion of Counsel. The Shareholders shall have received an
opinion of Xxxx X. Xxxxxxx, Xx., Esq., counsel for WHAM, dated as of the Closing
Date, to the effect that:
(i) WHAM is a corporation duly organized, validly existing
and in good standing under the laws of the Delaware.
(ii) WHAM's Board of Directors have approved the transactions
contemplated by this Agreement.
(iii) All SEC filings have been timely made, including those
for the latest quarter.
(b) Conditions Performed. Except as provided herein, as of the
Closing Date, all the terms and conditions of this Agreement to be complied with
and performed by WHAM at or before the Closing Date shall have been complied
with or performed in all material respects.
(c) Representations and Warranties True at Closing. The
representations and warranties of WHAM in this Agreement shall be correct in all
material respects at and as of the Closing Date, and WHAM shall have delivered
to the Shareholders a certificate to such effect signed by an executive officer
of WHAM.
12. Conditions of WHAM's Obligations. The obligations of WHAM hereunder
are subject to each of the conditions set forth below being fulfilled on the
Closing Date, or thereafter as provided below. Any of such conditions can be
waived by WHAM.
(a) NEW HORIZONS's Board of Directors' Approval. The Board of
Directors of NEW HORIZONS shall have approved the transactions contemplated by
this Agreement.
(b) Opinion of Counsel. On or before the Closing Date, WHAM shall
have received an opinion of Xxxxxx X. Xxxxxxxxx, Xx., Esq., counsel for NEW
HORIZONS, dated the Closing Date, as to the matters below and setting forth the
documents examined as the basis therefor:
(i) NEW HORIZONS is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware with
requisite corporate power and authority to transact it business and own its
properties.
(ii) All of the equitable interests of NEW HORIZONS have been
duly authorized and issued, are validly outstanding, are fully paid and non-
assessable.
(iii) The capitalization of NEW HORIZONS is as set forth in
this Agreement. Other than as provided herein, there are no outstanding options
or rights with respect to the capital stock of NEW HORIZONS or any securities
convertible into or exchangeable for shares of such stock, or any other
commitments of any kind for the issuance of additional shares of interests or
securities of NEW HORIZONS.
(iv) Neither the execution and delivery of this Agreement nor
the performance of the transactions contemplated hereby will (a) constitute a
breach of the Articles of Incorporation or By-Laws of NEW HORIZONS or any
evidence of indebtedness or agreement to which it or they are a party, or
constitute an event which entitles any other party to any agreement to which NEW
HORIZONS is a party to terminate such agreement, (b) cause a default under any
mortgage or deed of trust, or other lien, charge or encumbrance to which any of
NEW HORIZONS's property is subject, (c) accelerate, or constitute an event
entitling, or which would on notice or lapse of time or both, entitle the holder
of any indebtedness of NEW HORIZONS to accelerate, or (d) conflict with or
result in the breach of any writ, injunction or decree of any court or
governmental instrumentality;
(v) This Agreement has been duly and validly authorized,
executed and delivered by the Shareholders and NEW HORIZONS and is valid and
binding upon them in accordance with its terms;
(vi) The Shareholders have good and marketable title to the
shares of capital stock of NEW HORIZONS with full right and power to transfer
and sell said shares to WHAM, free and clear of all liens, encumbrances and
claims;
(vii) Such counsel does not know of any action, suit,
proceeding or claim pending or threatened against NEW HORIZONS, its or their
property or business, or the transactions contemplated by this Agreement;
(viii) No consent, approval or other order of any governmental
or administrative board or body is required for the execution and
delivery by the Shareholders of this Agreement and the sale of the NEW HORIZONS
Shares to WHAM pursuant hereto.
(ix) NEW HORIZONS has no subsidiaries.
(c) Instruments of Transfer. WHAM shall have received instruments
of transfer effecting the transfer of the NEW HORIZONS Shares to WHAM.
(d) Compliance with Conditions. As of the Closing Date, all the
terms and conditions of this Agreement to be complied with and performed by NEW
HORIZONS on or before the Closing Date shall have been complied with and
performed in all material respects. NEW HORIZONS shall have delivered to WHAM
certificate(s) to such effect in form and substance satisfactory to WHAM.
(e) Correctness of Representations and Warranties. The
representations and warranties of NEW HORIZONS herein shall be correct in all
material respect at and as of the Closing Date, and NEW HORIZONS, respectively,
shall have delivered to WHAM a certificate to such effect.
(f) Certificate of Good Standing. NEW HORIZONS shall deliver to
WHAM at the Closing, a certificate issued by the Delaware Secretary of State
certifying as to the good standing of NEW HORIZONS as of a date not more than
fifteen (15) days prior to the Closing Date.
13. Additional Covenants and Undertaking of the parties. The performance
and adherence to the following undertakings and covenants of WHAM and the
Shareholders are additional conditions to the parties' obligations under this
Agreement.
(a) Notice of Certain Defaults or Claims. Each party shall give
prompt notice to the other of any notice of default relating to either party
received subsequent to the date of this Agreement and prior to the Closing Date
and of the assertion of any claim which, if upheld, or the occurrence of any
event, which would render inaccurate any representation or warranty of the
affected party.
(b) Implementation of Representations and Warranties. Each party
will take all reasonable action within its or their capability necessary to
render accurate as of the Closing Date such party's representations and
warranties contained in this Agreement and each party will refrain from taking
any action which would render inaccurate as of the Closing Date any such
representations or warranties.
(c) Delivery of Additional Documents. Each party will execute
and deliver, or cause to be executed and delivered, such additional assignments,
endorsements and other documents as the other party may reasonably request for
the purpose of carrying out this Agreement.
(d) Consents. The Shareholders shall cause NEW HORIZONS to
prosecute and obtain appropriate consents and authorization of all cognizant
government agencies necessary to approve the transfer of control of NEW HORIZONS
without adverse effects upon the continuation of all contracts, if any.
(e) Special Covenants of NEW HORIZONS and the Shareholders. NEW
HORIZONS and the Shareholders agree that following the Closing, they will cause
the following actions to be taken by WHAM:
(i) Press Releases. Any press releases necessary will be
promptly disseminated by customary means.
(ii) SEC Filings. NEW HORIZONS and the Shareholders
acknowledge that WHAM is subject to the reporting and informational requirements
of Section 13 of the Securities Exchange Act of 1934, as amended ("Exchange
Act"). Such new directors and executive officers and all Shareholders who after
the Exchange hold five percent or more of WHAM's common stock shall as
applicable promptly and timely file Form 3 reports and Schedule 13D's with the
Securities and Exchange Commission ("Commission"), as required by law. NEW
HORIZONS and the Shareholders also agree that after the Closing they will cause
WHAM to timely file a report on Form 8-K and to timely file (within all
permitted extensions) all audited and proforma consolidated financial statements
required by Form 8-K.
(f) WHAM Shareholder Approval. The parties acknowledge that WHAM,
absent first obtaining the consent of its shareholders for the Exchange, must
comply with Section 14(f) of the Exchange Act and Rule 14f-1 of the Commission
thereunder, which requires ten days' prior notice to the Commission and to
WHAM's shareholders before the new members of WHAM's board of directors
designated by NEW HORIZONS may take office. WHAM, NEW HORIZONS and the
Shareholders agree that the written concurrence pursuant to Section 228 of the
Delaware General Corporation Law of two (2) shareholders of WHAM holding in the
aggregate more than fifty percent of WHAM's issued and outstanding shares in
lieu of a general meeting of its shareholders, will constitute the approval of
WHAM's shareholders.
(g) No Reverse Split. The parties acknowledge that, following the
Closing, the Shareholders when acting as a group will hold the voting power to
effect any corporate action. It is expressly agreed among WHAM, NEW HORIZONS and
the Shareholders that, for a period of eighteen (18) months following the
Closing ("Period"), WHAM shall not effect any "prohibited
action," defined as any reverse split or combination of its common shares, or
any reorganization, recapitalization or other action whatsoever (other than a
merger, exchange, consolidation or similar transaction with an unaffiliated
entity) which has the effect of changing the number of outstanding WHAM common
shares into a smaller number of common shares. Each Shareholder expressly agrees
that, during the Period, he, she or it will not vote for or support any such
prohibited action nor grant a proxy or other voting right to a person other than
a Shareholder to vote at any meeting or act by written consent on a proposal to
effect a prohibited action, and will affirmatively oppose any attempt to effect
a prohibited action during the Period.
This provision is intended for the protection of existing shareholders of
WHAM and persons who become shareholders during the Period, and all parties
agree that this provision and the duration of the Period is reasonable. The
parties expressly agree that all shareholders of WHAM at the time of the
taking of a prohibited action are or shall be third party beneficiaries of
this provision, and any one or more of such shareholders may bring an
injunctive action to prevent a prohibited action(s) or an action to force WHAM
to revoke or rescind a prohibited action as if it had never been effected, or
may otherwise judicially enforce this provision. Any shareholder prevailing in
such injunctive or other action shall be entitled to reimbursement from WHAM
for the costs and reasonable attorneys' fees incurred in bringing such
action(s).
14. The Closing.
(a) Time and Place. The Closing of the transactions contemplated by
this Agreement shall be at the offices of Xxxx X. Xxxxxxx, Xx., Esq., XXXXXXX &
COMPANY, 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX, at 2:00 p.m. on March 6,
1998, or any other date or place that may mutually be agreed upon by the
parties.
(b) Documents to be Delivered by the Shareholders on the Closing
Date. On the Closing Date, the Shareholders shall deliver to WHAM, in form
satisfactory to WHAM's counsel, the following documents:
(i) copies of certificates representing the NEW HORIZONS
Shares, on which there is no endorsement, legend or notice of adverse claims,
duly endorsed by the Shareholders for transfer;
(ii) all instruments referred to in Paragraph 13 above, the
delivery of which are therein specified as conditions to WHAM's obligation to
close.
(c) Documents Delivered by WHAM on Closing Date. All instruments
referred to in Paragraph 11 above, the delivery of which are
therein specified as conditions to the Shareholders' obligation to close.
15. Access to Information.
(a) NEW HORIZONS's Access to Information and Documentation. WHAM
will afford to a representative or representatives of NEW HORIZONS the
opportunity upon reasonable request and during regular business hours to make a
reasonable investigation of WHAM's operations. If for any reason the Closing
contemplated by this Agreement is not consummated, NEW HORIZONS and the
Shareholders agree not to disclose to any person any non-public information
obtained by them from such access and investigation.
(b) WHAM's Access to Information and Documentation. The
Shareholders shall cause NEW HORIZONS to afford to representatives of WHAM, upon
reasonable request and during regular business hours, full and free access to
the property, business records, stock book, minute books, records and books of
account, instruments, documents and evidences of title of NEW HORIZONS so that
WHAM may have full opportunity to make such investigation as it shall desire to
make of the affairs of NEW HORIZONS in its sole and absolute discretion. If for
any reason the Closing contemplated by this Agreement is not consummated, WHAM
agrees not to disclose to any person any information obtained by it from such
access and investigation.
(c) Effect of Investigations. Any investigations of NEW HORIZONS or
WHAM as permitted by this Paragraph shall not affect any of the representations
and warranties hereunder and shall be conducted in such manner as will not
interfere unreasonably with the operations of the business or the personnel of
WHAM or NEW HORIZONS, as the case may be.
16. Costs.
(a) Finders' Fees. Each of the Shareholders, NEW HORIZONS and WHAM
represents and warrants that it has dealt with no broker or finder in connection
with any of the transactions contemplated by this Agreement, and, insofar as it
knows, no broker or other person is entitled to any commission or finder's fee
in connection with any of these transactions. The Shareholders jointly and
severally agree to indemnify and hold harmless WHAM, and WHAM agrees to
indemnify and hold them harmless against any loss, liability, damage, cost,
claim or expense incurred by reason of any brokerage commission or finder's fee
alleged to be payable because of their individual act or omission or statement.
(b) Other Costs. WHAM, the Shareholders and NEW HORIZONS shall
each pay all of their own costs and expenses incurred or to be incurred by it or
them incident to the preparation and carrying out of the transactions herein
contemplated.
17. Termination of This Agreement.
(a) This Agreement shall terminate:
(i) By mutual written consent of the WHAM and NEW HORIZONS;
(ii) Automatically, without need of action by any party, if
the Closing has not occurred by the Closing date herein provided for or any
extensions agreed to by WHAM and NEW HORIZONS;
(iii) By NEW HORIZONS or WHAM, if:
(A) all the conditions precedent to its respective
obligations hereunder have not been satisfied or waived prior to the Closing
Date, as it may be accelerated or extended, or if any Shareholder refuses to
execute this Agreement or deliver the NEW HORIZONS Shares as herein called for;
(B) any party shall have defaulted or refused to perform in
any material respect under this Agreement, or if WHAM or NEW HORIZONS should
have reasonable cause to believe there has been a material representation
concerning, or failure or breach of, any representation or warranty by the other
party, or if it appears that either NEW HORIZONS or WHAM has committed any
unlawful acts affecting the other party;
(C) the transactions contemplated in this Agreement and
related agreements have not been consummated on the Closing Date, as it may be
accelerated or extended, OR
(D) either WHAM or NEW HORIZONS shall reasonably determine
that the transactions contemplated in this Agreement have become inadvisable by
reason of the institution or threat by any federal, state or municipal
governmental authorities or by other person whatever of a formal investigation
or of any action, suit or proceeding of any kind against either or both parties
which in one party's reasonable belief is material in light of the other party's
business, prospects, properties or financial condition;
(b) Any termination of this Agreement (other than automatic
termination) shall be made in accordance with the above listed grounds and, if
terminated by NEW HORIZONS or WHAM, shall be accompanied by a copy of the
resolution of the terminating party's board of directors. Written notice of
termination shall be given to the other party as required in this Agreement as
promptly as is practical under the circumstances. Upon a party's receipt of such
termination notice, this Agreement shall terminate and the transactions herein
contemplated shall be abandoned without further action by the parties.
18. Form of Agreement.
(a) Subject Headings. The subject headings in this Agreement are
included for convenience only, and shall not affect the construction or
interpretation of any of the provisions hereof.
(b) Entire Agreement; Modification. This Agreement and all exhibits
and documents incorporated herein by reference constitutes the entire agreement
between the parties pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations and
understandings of the parties, whether oral or in writing. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by the parties against which asserted.
(c) Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
(d) Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
19. Parties.
(a) Parties in Interest. Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over against any party to this Agreement.
(b) Successors and Assigns. This Agreement shall be binding on, and
shall inure to the benefit of, the parties to it and their respective heirs,
legal representatives, successors and assigns; provided, however, that neither
WHAM nor the Shareholders may assign any of its rights or obligations or duties
under this Agreement without the express written consent of the other party.
20. Remedies.
(a) Remedies Cumulative, etc. No right, power or remedy herein
conferred upon or reserved to any party hereto is intended to be exclusive of
any other right, power or remedy, and every right, power and remedy pursuant
to this Agreement, now or hereafter existing at law or in equity or by statute
or otherwise, shall be cumulative and concurrent, to the extent permitted by
law, and shall be in addition to every other right, power or remedy pursuant to
this Agreement, now or hereafter existing at law or in equity or by statute or
otherwise. The exercise or beginning of the exercise by any party hereto of any
such right, power or remedy shall not preclude the simultaneous or later
exercise of any right, power or remedy.
(b) No Waiver. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar. No waiver shall be binding unless specifically so titled, and
executed in writing by the party making the waiver. No failure or delay to
insist upon the strict performance of any term, condition, covenant or agreement
of this Agreement, or to exercise any right, power or remedy hereunder or
consequent upon a breach hereof, shall constitute a waiver of any such term,
condition, covenant, agreement, right, power or remedy of any such breach, or
preclude the exercise of any such right, power or remedy at any later time or
times.
(c) Specific Performance. The obligations under this Agreement are
unique. If any party should default in its obligations under this Agreement, the
parties hereto acknowledge that it would be impracticable to measure the
resulting damages; accordingly, the non-breaching party in addition to any other
available rights or remedies, may xxx for specific performance, and the other
party waives the defense that a remedy in damages will be adequate.
(d) Arbitration. Any disputes arising out of this Agreement, or the
performance of duties contemplated by this Agreement shall be resolved through
arbitration in accordance with the rules of the American Arbitration
Association. Any such arbitration shall be conducted at Washington, D.C. Any
awards or decisions resulting from said arbitration shall be final and may be
enforced by any court of competent jurisdiction. If any action is brought for
the enforcement of this Agreement or to recover damages, the successful or
prevailing party or parties shall be entitled to recover reasonable attorney's
fees and other costs incurred in that action, in addition to any other relief to
which it or they may be entitled.
21. Survival. All representations, warranties, covenants and agreements
of the parties contained in this Agreement, or in any instrument, certificate,
opinion or other writing provided for in it, shall survive any investigation
made by either party and shall survive the Closing subject to the provisions of
Paragraphs 6 and 7 hereof.
22. Notices. All notices, request, instruction or other document to be
given hereunder by a party shall be in writing and delivered personally or by
facsimile transmission, or by electronic mail, or sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
If to NEW HORIZONS: NEW HORIZONS, INC.
0000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
If to WHAM: WHITNEY AMERICAN CORPORATION
00000 X. Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
23. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
WHEREFORE, the premises considered, the parties herein have executed the
foregoing Agreement, intending to be so bound, on the day first above written.
WHITNEY AMERICAN CORPORATION
A Delaware corporation
By:
Xxxxxxx X. Xxxxxx
Its: COB, CEO
NEW HORIZONS, INC.
By:
Xxxxxxxxxxx Xxxxxxx
Its: COB/CEO
SHAREHOLDERS
----------------------------------
COSTA REAL CORPORATION
By: Xxxxxxxxxxx Xxxxxxx
-----------------------------------
TWENTY FIRST CENTURY HERITAGE TRUST
By: Xxxxxx X. Xxxxxxxxx, Xx.
Exhibit A
Name No. Of NEW HORIZONS Shares No. Of WHAM Shares
Costa Real Corporation 500 875,000
Twenty First Century Heritage Trust 500 875,000
---- ---------
TOTAL 1000 1,750,000
