STOCK EXCHANGE AGREEMENT PRIVATEC
This Agreement ("Agreement") is made and entered into on March 6, 1998, by and
among EXETER GROUP, INC., a Florida corporation, as the acquired company
("EXETER"); WHITNEY AMERICAN CORPORATION, a Delaware corporation, as the
acquiring company (the "WHAM"); and those persons executing this Agreement in
their capacity as shareholders of EXETER (the "Shareholders").
WHEREAS, WHAM wishes to acquire and the Shareholders wish to transfer all the
issued and outstanding stock of EXETER 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, EXETER 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 9, 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) "EXETER Shares" means One Hundred (100%) percent of the issued and
outstanding capital stock of EXETER to be delivered to WHAM at the Closing.
2. Exchange of Stock
(a) Exchange. Subject to the terms and conditions herein set forth, at
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the Closing on the Closing Date;
(i) The Shareholders agree to transfer to WHAM the number of EXETER
Shares, without par value, shown opposite their names in Exhibit A, in exchange
for an aggregate of One Million (1,000,000) 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 EXETER 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
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1. Xxxx X. Xxxxxxxxx Chairman of the Board, Chief Executive Officer
Xxxxxx X. Xxxxxxxxx, Xx. Executive Vice President, Director
Xxxxxxxxxxx Xxxxxxx Executive Vice President, Chief Operating
Officer, Director
Xxxx X. Xxxxx Director
Xxxxx Xxxxxxxxxx Director
Xxxxxxx Xxxxxxxx Director
Xxxx Xxxxxxxx Assistant Secretary/Treasurer, Director
3. Representations and Warranties of EXETER and the Shareholders. EXETER 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 EXETER
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
EXETER Shares being sold.
(b) EXETER 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 EXETER 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 EXETER
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 communi cation to any Shareholder that constitutes tax or investment advice.
(g) Authority. The Shareholders have valid and marketable title to the
EXETER 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. EXETER is duly organized, validly
existing and in good standing under the laws of the State of Florida 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. EXETER 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 EXETER consists
of One Thousand (1,000) shares of Common Stock, $0 par value per share. As of
the date hereof, EXETER has issued and outstanding 100 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 EXETER Shares. The Shareholders have good and valid title to
all of the issued and outstanding common stock of EXETER, 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 EXETER for
the year ended December 31, 1997, accompanied by the related opinions of
EXETER's official independent auditors as of such dates and for such periods
(the "Financial Statements"). Said Financial Statements (i) were prepared in
accordance with the books and records of EXETER; (ii) were prepared in
accordance with generally accepted accounting principles consistently applied;
and (iii) sets forth fairly EXETER'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, EXETER 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 EXETER 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, absent written
disclosure, no credit or charge has been made to any surplus account of EXETER.
(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 EXETER;
(ii) destruction, damage to, or loss of any asset of EXETER that may
substantially affect the financial condition, business, or prospects of EXETER;
(iii) change in accounting methods or practices (including, without
limitation, any change in inventory accounting or in depreciation or
amortization policies or rates) by EXETER;
(iv) revaluation by EXETER 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 EXETER, or any
direct or indirect redemption, purchase, or other acquisition by EXETER of any
of its shares of capital stock;
(vi) any other transaction by EXETER except in the ordinary course of
business;
(vii) direct or indirect increase in the salary or other compensation
payable or to become payable by EXETER to any of its officers, directors or
employees, or the declaration, payment or commitment or obligations of any kind
for the payment by EXETER of a bonus or other additional salary or compensation
to any such person;
(viii) sale or transfer of any single asset of EXETER having a value
in excess of $1,000;
(ix) amendment or termination of any contract, agreement, or license
to which EXETER is a party except in the ordinary course of business;
(x) loan by EXETER to any person or entity, or guaranty by EXETER of
any loan;
(xi) mortgage, pledge, or other encumbrance of any asset of EXETER;
(xii) waiver or release of any right or claim of EXETER;
(xiii) issuance or sale by EXETER of any shares of EXETER'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. EXETER 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, EXETER 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
EXETER (i) to prepare and file all Federal, state and local income tax returns
for EXETER 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 EXETER or with respect to the EXETER Shares. On or before the
Closing Date, EXETER 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
EXETER and a true and complete copy of the unaudited consolidated and
consolidating balance sheets of EXETER as of February 28, 1998 ("Current Balance
Sheet").
(o) Title to Properties and Assets. EXETER 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 EXETER, or which have not arisen otherwise than in the
ordinary course of business. No personal property needed by EXETER 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 EXETER. The tangible
personal property reflected in those books and records constitutes all such
tangible personal property necessary for the conduct by EXETER of its business
as now conducted.
(p) Proprietary Rights. EXETER 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 EXETER neither conflict with nor
infringe, and no one has asserted to EXETER 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 EXETER
with respect to any Proprietary Rights and none has been threatened against
EXETER. To the best knowledge of EXETER (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 EXETER based on an assertion that EXETER 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, EXETER shall have delivered, in
form satisfactory to WHAM pursuant to this subparagraph, a certificate or
certificates of all insurance coverage of EXETER. Such certificates evidence
policies of fire, liability and other forms of casualty insurance and workmen's
compensation insurance held by EXETER. Such policies will be maintained in force
and in effect by EXETER in present amounts up to and including the Closing Date.
EXETER is not in material default under any of such policies.
(r) Contracts. EXETER has previously provided 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 EXETER 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 EXETER 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
EXETER is a party, either as licensor or licensee;
(xiii) Contracts containing covenants limiting the freedom of EXETER
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 EXETER, or to EXETER's knowledge, any other party to any
of these agreements. EXETER has received no notice that any party to any of
these agreements intends to cancel or terminate any of these agreements. EXETER
is not a party to, nor is EXETER or the property of EXETER bound by any
agreement that is materially adverse to the business, properties or financial
condition of EXETER. EXETER 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 EXETER 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 knowledge of EXETER,
there is no action, suit proceeding threatened or pending which, if it were to
result in a decision adverse to EXETER, would in the judgment of EXETER result
in any material adverse change in the condition, financial or otherwise,
business or prospects of EXETER 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 EXETER, 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 EXETER 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 EXETER, or (iii) the
creation or imposition of any security interest, lien, charge, or encumbrance on
any of the properties or assets of EXETER.
(v) Corporate Documents. EXETER has furnished to WHAM for its examination
(i) copies of the Articles of Incorporation and Bylaws of EXETER, including
all amendments, (ii) the complete minute books of EXETER of all meetings of
the shareholders and Board of Directors of EXETER, (iii) the stock transfer
books of EXETER 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
EXETER.
(w) Compliance with Other Instruments, etc.; None Burdensome. To the best
of the Shareholder's knowledge and belief, EXETER 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 EXETER 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 EXETER 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 EXETER or any of its properties or assets.
(x) Indebtedness to Officers, Directors and Shareholders. EXETER is not
indebted to any person who is an officer, director or shareholder of EXETER in
any amount whatsoever other than for salaries for services rendered or for
reimbursable business expenses.
(y) Brokerage and Finder's Fees. EXETER 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 EXETER is a party which in any way
affects any of the properties, assets or business of EXETER. 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 EXETER 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 EXETER 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 EXETER.
4. Conduct of EXETER's Business Pending Closing. EXETER and the Shareholders
hereby covenant and agree with WHAM that between the date hereof and the Closing
Date:
(a) EXETER 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 EXETER Shares.
(c) EXETER 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
shareholde rs.
(d) EXETER 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) EXETER 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) EXETER 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) EXETER 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) EXETER will continue in force its existing insurance policies,
subject only to variation in amounts required by the ordinary operations of its
business.
(i) EXETER 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) EXETER will not incur any indebtedness to any person who is an
officer, director or shareholder of EXETER in any amount whatsoever other than
for salaries for services rendered or for reimbursable business expenses.
(k) EXETER 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 EXETER 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
5,000,000 shares 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 EXETER, net of any insurance proceeds received by the
Shareholders or EXETER with respect thereto, asserted against, resulting to,
imposed upon or incurred by the Shareholders or EXETER, 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 EXETER 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 EXETER 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 Xxxxxxx Xxxxxxxx as their agent and attorney in fact
("Shareholders' Representative"), 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. 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) EXETER's Board of Directors' Approval. The Board of Directors of
EXETER 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 EXETER,
dated the Closing Date, as to the matters below and setting forth the documents
examined as the basis therefor:
(i) EXETER is a corporation duly organized and validly existing and in good
standing under the laws of the State of Florida with requisite corporate
power and authority to transact it business and own its properties.
(ii) All of the equitable interests of EXETER have been duly authorized and
issued, are validly outstanding, are fully paid and non-assessable.
(iii) The capitalization of EXETER 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 EXETER 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 EXETER.
(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 EXETER 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 EXETER 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
EXETER'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 EXETER 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 EXETER 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 EXETER 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 EXETER, 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 EXETER Shares to WHAM
pursuant hereto.
(ix) EXETER has no subsidiaries.
(c) Instruments of Transfer. WHAM shall have received instruments of transfer
-----------------------
effecting the transfer of the EXETER 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 EXETER on
or before the Closing Date shall have been complied with and performed in
all material respects. EXETER 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 EXETER herein shall be correct in all material respect at and
as of the Closing Date, and EXETER, respectively, shall have delivered to
WHAM a certificate to such effect.
(f) Certificate of Good Standing. EXETER shall deliver to WHAM at the
----------------------------
Closing, a certificate issued by the Florida Secretary of State certifying
as to the good standing of EXETER 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 EXETER to prosecute and obtain
--------
appropriate consents and authorization of all cognizant government agencies
necessary to approve the transfer of control of EXETER without adverse
effects upon the continuation of all contracts, if any.
(e) Special Covenants of EXETER and the Shareholders. EXETER 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. EXETER 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.
EXETER 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 EXETER may take office. WHAM, EXETER 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, EXETER 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 9,
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 EXETER 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) EXETER's Access to Information and Documentation. WHAM will afford to a
------------------------------------------------
representative or representatives of EXETER 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, EXETER 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 EXETER 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 EXETER so that WHAM may
have full opportunity to make such investigation as it shall desire to make
of the affairs of EXETER 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 EXETER 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 EXETER, as the case may be.
16. Costs.
-----
(a) Finders' Fees. Each of the Shareholders, EXETER 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 EXETER 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 EXETER;
(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 EXETER;
(iii) By EXETER 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 EXETER 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 EXETER 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 EXETER 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 EXETER 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
EXETER 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 EXETER: EXETER GROUP, INC.
0000 Xxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, 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
EXETER GROUP, INC.
By:____________________________________________________________________________
Xxxxxxx Xxxxxxxx
Its: Secretary
SHAREHOLDERS
_____________________________________
CARIBBEAN TRANSFER AGENCY, LTD.
By: Xxxxxxx Xxxxxxxx
_________________________________________
THE FIRST INTERNATIONAL MONETARY AGENCY OF LONDON, LTD
By: Xxxxxxx Xxxxxxxx
_________________________________________
THE CARSTAIRS GROUP, LTD.
By: Xxxxxxx Xxxxxxxx
_________________________________________
ATLANTIC PRODUCTIONS INTERNATIONAL, LTD.
By: Xxxxxxx Xxxxxxxx
_________________________________________
THE XXXXXXX-XXXXXXX FAMILY TRUST
By: Xxxxxx Xxxxxxxx
C:\MyFiles\EXETER Whitney.wpd
Exhibit A
Name No. Of EXETER Shares No. Of WHAM Shares
---- -------------------- ------------------
Caribbean Transfer Agency, Ltd. 200 200,000
The First International Monetary Agency
of London, Ltd. 250 250,000
The Carstairs Group, Ltd. 250 250,000
Atlantic Productions International, Ltd. 200 200,000
The Xxxxxxx-Xxxxxxx Family Trust 100 100,000
---- ---------
TOTAL 1000 1,000,000
