STOCK REDEMPTION AND PURCHASE AGREEMENT
THIS STOCK REDEMPTION AND PURCHASE AGREEMENT (the "Agreement") is made
and entered into to be effective as of June 28, 2011 (the "Effective Date"), by
and between XXXXXX INTERNATIONAL HOLDINGS, INC., a California corporation
("MIHI") and WINTEC PROTECTIVE SYSTEMS, INC., a Texas corporation ("WinTec").
W I T N E S S E T H:
WHEREAS, contemporaneously herewith, MIHI has been issued twenty
million four hundred thousand (20,400,000) shares of common stock of WinTec,
$0.001 par value per share (collectively, the "MIHI Shares");
WHEREAS, MIHI has loaned up to One Million Five Hundred Thousand and
No/100 Dollars ($1,500,000.00) to WinTec pursuant to that certain Revolving
Promissory Note made by WinTec in favor of MIHI (the "Promissory Note");
WHEREAS, upon the full repayment of the Promissory Note, MIHI has
granted WinTec the right to redeem twelve million four hundred thousand
(12,400,000) shares of common stock of WinTec, out of the MIHI Shares
(collectively, the "Redemption Shares");
WHEREAS, contemporaneously with the redemption by WinTec of the
Redemption Shares, MIHI intends to grant to WinTec options to purchase three
million (3,000,000) shares of common stock of MIHI, $0.0001 par value per share,
at a strike price of Ten Cents ($0.10) per share (collectively, the "Options");
and
WHEREAS, it is the intent and purpose of this Agreement to specify the
terms and conditions under which (a) WinTec will redeem the Redemption Shares
from MIHI, and (b) MIHI will issue the Options to WinTec.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Recitals. The defined terms set forth in the recitals
are incorporated herein by this reference for all purposes.
1.2 Additional Definitions. In addition to the terms defined
elsewhere in this Agreement, as used herein,
(a) "Affiliate" means, as to any specified Person, any other
Person that, directly or indirectly, through one or more intermediaries
or otherwise, controls, is controlled by or is under common control
with the specified Person. As used in this definition, "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of management or policies of the Person (whether through
ownership of capital stock, by contract or otherwise).
(b) "Business Day" means any day of the year on which national
banking institutions in Houston, Texas are open to the public for
conducting business and are not required or authorized to close.
(c) "Governmental Entity" means any court or tribunal or
administrative, governmental or regulatory body, agency or authority.
(d) "Law" or "Laws" means any domestic or foreign law, order,
writ, injunction, decree, ordinance, statute, rule or regulation
enacted, issued or entered by a Governmental Entity.
(e) "Legal Proceeding" means any judicial, administrative or
arbitral actions, suits, mediation, investigation, inquiry, proceedings
or claims (including counterclaims) by or before a Governmental Entity.
(f) "Material Adverse Effect" means, with respect to any
Person, any change, circumstance or effect that, individually or in the
aggregate with all other changes, circumstances and effects, is
materially adverse to the assets, properties, financial condition or
results of operations of such Person, taken as a whole, or the ability
of such Person to consummate the transactions contemplated by this
Agreement; provided, however, that any change resulting from (i)
general economic conditions or industry conditions that does not
disproportionately affect such Person, (ii) the announcement of the
transactions contemplated by this Agreement and the performance of the
obligations of the parties under this Agreement, (iii) any change in
Law, or (iv) any action permitted by this Agreement shall not
constitute a Material Adverse Effect.
(g) "Order" means any order, injunction, judgment, doctrine,
decree, ruling, writ, assessment or arbitration award of a Governmental
Entity or arbitral tribunal.
(h) "Permit" means any approval, authorization, consent,
license, permit or certificate of a Governmental Entity.
(i) "Person" means an individual, corporation, limited
liability company, partnership, association, trust, unincorporated
organization, joint venture, or a governmental entity or any
department, agency or political subdivision thereof.
(j) "Tax" or "Taxes" means all federal, state, local or
foreign taxes, charges, fees, imposts, duties, levies, gaming or other
assessments, including all net income, gross receipts, capital, sales,
use, ad valorem, value added, transfer, franchise, profits, inventory,
capital stock, license, withholding, payroll, employment, social
security, unemployment, excise, severance, stamp, occupation, property,
and estimated taxes, customs duties, fees, assessments and charges of
any kind whatsoever, together with any interest and any penalties,
fines, additions to tax or additional amounts imposed by any taxing
authority (domestic or foreign), and shall include any tax for which a
party is liable under U.S. Treasury Regulation Section 1.1502-6 (or any
comparable rule or provision of any tax law), any liability in respect
of taxes imposed by contract, tax sharing agreement, tax indemnity
agreement or any similar agreement.
(k) "Tax Returns" means any report, return, document,
declaration, or any other information or filing required to be supplied
to any taxing authority or jurisdiction (domestic or foreign) in
respect of Taxes, including, information returns, any document in
respect of or accompanying payments or estimated Taxes, or in respect
of or accompanying requests for the extension of time in which to file
any such report, return document, declaration or other information.
ARTICLE II
REDEMPTION OF SHARES; ISSUANCE OF OPTIONS
2.1 Sale and Redemption of Shares and Issuance of Options. Upon the
terms and subject to the conditions contained herein, on the Closing Date, MIHI
agrees to (a) sell the Redemption Shares to WinTec, pursuant to a redemption by
WinTec, free and clear of any and all liens, security interests, claims,
mortgages, assessments, equitable interests, options, pledges, rights of first
refusal, or other encumbrances or restrictions of any kind, including any
restrictions on use, voting, transfer, receipt of income or exercise of any
other attribute of ownership, and (b) issue to WinTec the Options to purchase
additional shares of the stock of MIHI; and WinTec agrees to purchase and redeem
the Redemption Shares from MIHIand accept and receive the Options from MIHI, all
for the consideration set forth in this Article II.
2.2 Purchase Price. On the Closing Date, WinTec shall pay the total sum
of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) for the
benefit of MIHI, for the Redemption Shares and the issuance of the Options
acquired hereunder (the "Purchase Price"), which shall be paid to MIHI via cash,
certified check, wire transfer, or other immediately available funds.
article iii
CLOSING
3.1 Closing Date. The consummation of (a) the sale and redemption of
the Redemption Shares, and (b) grant and issuance of the Options, as provided
for in Section 2.1 (the "Closing") shall take place on such date as determined
by WinTec, upon the full repayment of the Promissory Note, provided that WinTec
has given MIHI five (5) business days' prior written notice thereof (the
"Closing Date").
3.2 Closing Date Deliveries of MIHI. At Closing, MIHI shall
deliver or cause to be delivered to WinTec:
(a) the share certificate representing all of the MIHI
Shares, endorsed in blank or accompanied by duly executed assignment
documents;
(b) a resignation of one (1) of the directors of WinTec
appointed by MIHI from his or her position as director of WinTec, in
the form attached as Exhibit A (the "Resignation");
(c) a duly executed Consent Action of the shareholders and
directors of WinTec, approving the Resignation, reducing the total
number of directors of WinTec to six (6), authorizing the redemption of
the Redemption Shares, and the acceptance of the Options, in the form
attached as Exhibit B (the "Consent Action");
(d) a duly executed Stock Option Award, evidencing the grant
of the Options to WinTec, in the form attached as Exhibit C
(the "Option Award");
(e) duly executed resolutions of the directors of MIHI,
authorizing the redemption of the Redemption Shares and the issuance
of the Options to WinTec; and
(f) such other documents as WinTec shall reasonably request.
3.3 Closing Date Deliveries of WinTec. At Closing, WinTec shall
deliver or cause to be delivered to MIHI:
(a) payment of the Purchase Price;
(b) a duly issued share certificate representing the
remainder of the MIHI Shares then-owned by MIHI, less the
Redemption Shares;
(c) a duly executed Option Award;
(d) a duly executed Consent Action; and
(e) such other documents as MIHI shall reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MIHI
MIHI represents and warrants to WinTec that the following
representations and warranties are true and correct and shall be true and
correct as of the Closing (with the understanding that WinTec is relying
materially on each such representation in entering into and performing this
Agreement):
4.1 Status of MIHI. MIHI is a corporation duly incorporated, validly
existing, and in good standing under the laws of the State of California, and
has the requisite corporate power to own its properties and to carry on its
business as presently conducted.
4.2 Authorization of Agreement. MIHI has the requisite power and
authority to enter into and perform this Agreement, and to issue the Options to
WinTec. The execution, delivery, and performance of this Agreement by MIHI and
the consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action, and no further consent or
authorization of MIHI or its Board of Directors is required. This Agreement has
been duly authorized, executed, and delivered by MIHI and constitutes a valid
and binding obligation of MIHI, enforceable against MIHI in accordance with the
terms hereof.
4.3 No Conflicts. The execution, delivery, and performance of this
Agreement and the consummation by MIHI of the transactions contemplated hereby
or relating hereto do not and will not (a) result in a violation of MIHI's
charter documents or bylaws or other organizational documents, or (b) conflict
with, or constitute a default (or an event which, with notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration, or cancellation, of any agreement,
indenture, or instrument or obligation to which MIHI is a party or by which its
properties or assets are bound, or result in a violation of any law, rule, or
regulation, or any order, judgment, or decree of any court or governmental
agency applicable to MIHI or its properties (except for such conflicts,
defaults, and violations as would not, individually or in the aggregate, have a
Material Adverse Effect on MIHI). MIHI is not required to obtain any consent,
authorization, or order of, or make any filing or registration with, any court
or governmental agency, or the Over the Counter Bulletin Board (the "Bulletin
Board"), in order for it to execute, deliver, or perform any of its obligations
under this Agreement or to sell the Options in accordance with the terms hereof,
provided that for purposes of the representation made in this sentence, MIHI is
assuming and relying upon the accuracy of the relevant representations and
agreements of WinTec herein.
4.4 Consents and Approvals. No consent, waiver, approval, Order, Permit
or authorization of, or declaration or filing with, or notification to, any
Governmental Entity or third party is required on the part of MIHI in connection
with the execution and delivery of this Agreement, the compliance by MIHI with
any of the provisions hereof, or the consummation of the transactions
contemplated hereby.
4.5 Ownership and Transfer of Redemption Shares. MIHI is the record and
beneficial owner of the Redemption Shares, free and clear of any and all
liabilities, liens, encumbrances, pledges, trusts, equities, charges, options,
restrictions, obligations, commitments, or other burdens or encumbrances of any
nature whatsoever.
4.6 Litigation of MIHI. There is no Legal Proceeding pending or, to the
actual knowledge of MIHI, threatened against MIHI or to which MIHI is otherwise
a party relating to the Redemption Shares, the Options, this Agreement, the
Transaction Documents or the transactions contemplated hereby or thereby or
could otherwise prevent or delay the consummation of the transactions
contemplated by this Agreement.
4.7 Status of Options. The Options, upon issuance:
(a) have been, or will be, duly and validly authorized, and on
the date of exercise of the Options, the resulting shares of common
stock of MIHI will be duly and validly issued, fully paid and
nonassessable and registered pursuant to applicable Federal securities
Laws pursuant to an effective registration statement or exempt from
registration, and therefore free trading, unrestricted and unlegended;
(b) will not have been issued or sold in violation of any
preemptive or other similar rights of the holders of any securities of
MIHI or rights to acquire securities of MIHI; and
(c) will not subject the holders thereof to personal
liability by reason of being such holders.
4.8 No Market Manipulation. MIHI has not taken, directly or indirectly,
any action designed to, or that might reasonably be expected to, cause or result
in stabilization or manipulation of the price of the common stock of MIHI to
facilitate the sale or resale of the Options or affect the price at which the
Options may be exercised, issued, or resold.
4.9 Financial Advisor. No financial advisor, broker, finder or
investment banker is entitled to any brokerage, finder's, other fee or
commission, or expense reimbursement from MIHI in connection with the
transactions contemplated by this Agreement, and if any such fee shall become
due, it shall be paid by MIHI at or before Closing, and MIHI will indemnify and
hold WinTec harmless for any obligation for payment.
4.10 Full Disclosure. The information and documentation made available
to WinTec in relation to its due diligence investigation of MIHI is complete and
correct in all respects, and there are no omissions of facts or information that
may have an adverse bearing on the evaluation of the Options for purchase by
WinTec.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF WINTEC
WinTec warrants to MIHI that the following representations and
warranties are true and correct and shall be true and correct as of the Closing
(with the understanding that MIHI is relying materially on each such
representation in entering into and performing this Agreement):
5.1 Status of WinTec. WinTec is a corporation duly incorporated,
validly existing, and in good standing under the Laws of the State of Texas, and
has the requisite corporate power to own its properties and to carry on its
business as presently conducted.
5.2 Authorization of Agreement. WinTec has the requisite power and
authority to enter into and perform this Agreement and redeem the Redemption
Stock from MIHI. The execution, delivery, and performance of this Agreement by
WinTec and the consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary corporate action, and no further consent
or authorization of WinTec or its Board of Directors is required. This Agreement
has been duly authorized, executed, and delivered by WinTec and constitutes a
valid and binding obligation of WinTec, enforceable against WinTec in accordance
with the terms hereof.
5.3 No Conflicts. The execution, delivery, and performance of this
Agreement and the consummation by WinTec of the transactions contemplated hereby
or relating hereto do not and will not (a) result in a violation of WinTec's
charter documents or bylaws or other organizational documents, or (b) conflict
with, or constitute a default (or an event which, with notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration, or cancellation, of any agreement,
indenture, or instrument or obligation to which WinTec is a party or by which
its properties or assets are bound, or result in a violation of any law, rule,
or regulation, or any order, judgment, or decree of any court or governmental
agency applicable to WinTec or its properties (except for such conflicts,
defaults, and violations as would not, individually or in the aggregate, have a
Material Adverse Effect on WinTec). WinTec is not required to obtain any
consent, authorization, or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute, deliver, or perform
any of its obligations under this Agreement or to redeem the Redemption Shares
or acquire the Options in accordance with the terms hereof, provided that for
purposes of the representation made in this sentence, WinTec is assuming and
relying upon the accuracy of the relevant representations and agreements of MIHI
herein.
5.4 Consents and Approvals. No consent, waiver, approval, Order, Permit
or authorization of, or declaration or filing with, or notification to,
Governmental Entity or third party is required on the part of WinTec in
connection with the execution and delivery of this Agreement, the compliance by
WinTec with any of the provisions hereof, or the consummation of the
transactions contemplated hereby.
5.5 Financial Advisor. No financial advisor, broker, finder or
investment banker is entitled to any brokerage, finder's, other fee or
commission, or expense reimbursement from WinTec in connection with the
transactions contemplated by this Agreement, and if any such fee shall become
due, it shall be paid by WinTec at or before Closing, and which WinTec will
indemnify and hold MIHI harmless from any obligation for payment.
ARTICLE VI
OTHER AGREEMENTS
6.1 Resignation and Reduction of Directors. Contemporaneously herewith,
one (1) of the directors of WinTec appointed by MIHI shall resign from the board
of directors of WinTec, pursuant to the Resignation. MIHI agrees and
acknowledges that the total number of directors of WinTec that it shall be
entitled to appoint shall be reduced from three (3) to two (2), and at Closing
shall execute the Consent Action evidencing such reduction.
ARTICLE VII
CERTAIN COVENANTS OF THE PARTIES
7.1 Conduct of Business Before Closing. Except as contemplated by this
Agreement, during the period from the date hereof to the Closing Date, each of
MIHI and WinTec will conduct its operations in the ordinary course of business
consistent with past practices and use reasonable efforts to preserve intact its
current business organizations, preserve its relationships with customers,
suppliers, and others having business dealings with such party, and preserve the
goodwill of such party through the Closing Date. Without limiting the generality
of the foregoing, and except as otherwise expressly provided in this Agreement,
from the date hereof and prior to the Closing Date, neither MIHI nor WinTec
shall, without the prior written consent of the other party:
(a)amend its organizational and governing corporate documents;
(b) split, combine or reclassify any of its shares of capital
stock, which would have the effect of (i) in the case of MIHI, diluting
the Options, or (ii) in the case of WinTec, diluting the Redemption
Shares;
(c) take or agree in writing or otherwise to take any action
which would make any of the representations or warranties of such party
contained in this Agreement untrue, incomplete or incorrect in any
material respect.
7.2 Reasonable Efforts. Subject to the terms and conditions of this
Agreement, each party will use its reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable to consummate the transactions contemplated by this Agreement,
including, without limitation, obtaining at the earliest practical date all
consents, waivers, approvals, Orders, Permits, authorizations and declarations
from, make all filings with, and provide all notices to, all Governmental
Entities and third parties which are required to consummate, or in connection
with, the transactions contemplated by this Agreement.
7.3 Public Announcements. Prior to the Closing there shall be no press
releases or other public statements in respect of the transactions contemplated
by this Agreement, and no party shall issue any such press release or make any
such public statement without the prior mutual written consent of both WinTec
and MIHI, except as may be required by applicable Law.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Conditions Precedent to Obligations of WinTec. The obligation of
WinTec to consummate the transactions contemplated by this Agreement is subject
to the fulfillment, on or prior to the Closing Date, of each of the following
conditions precedent (any or all of which may be waived by WinTec in WinTec's
sole discretion in whole or in part):
(a) the representations and warranties of MIHI set forth in
this Agreement shall be true and correct, in each case, as of the date
of this Agreement and as of the Closing as though made at and as of the
Closing;
(b) MIHI shall have performed and complied with all
obligations and agreements required in this Agreement to be performed
or complied with by them on or prior to the Closing Date;
(c) there shall not have been or occurred any event, change,
occurrence or circumstance that, individually or in the aggregate with
any such events, changes, occurrences or circumstances, has had or
would reasonably be expected to have a Material Adverse Effect on MIHI;
(d) no Legal Proceedings shall have been instituted or
threatened, or claim or demand made, against MIHI or WinTec which could
reasonably be expected to restrain or prohibit, or to obtain
substantial damages with respect to, the consummation of the
transactions contemplated hereby, and there shall not be in effect any
Order by a Governmental Entity of competent jurisdiction restraining,
enjoining or otherwise prohibiting the consummation of the transactions
contemplated hereby;
(e) MIHI and WinTec shall have obtained all other material
consents, approvals, orders and authorizations of, and registrations
with, and made all other material declarations or filings with, any
Governmental Entity required to be obtained or made by them in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby;
(f) WinTec shall have received the items listed in Section
3.2; and
(g) MIHI shall not be in material breach of (i) that certain
License Agreement (the "License Agreement") or (ii) that certain Right
of First Refusal Agreement (the "ROFR Agreement"), both entered into by
and between MIHI and WinTec contemporaneously herewith.
8.2 Conditions Precedent to Obligations of MIHI. The obligations of
MIHI to consummate the transactions contemplated by this Agreement are subject
to the fulfillment, on or prior to the Closing Date, of each of the following
conditions precedent (any or all of which may be waived by MIHI in whole or in
part):
(a) the representations and warranties of WinTec set forth in
this Agreement shall be true and correct, in each case, as of the date
of this Agreement and as of the Closing as though made at and as of the
Closing;
(b) WinTec shall have performed and complied with all
obligations and agreements required by this Agreement to be performed
or complied with by it on or prior to the Closing Date, including but
not limited to the full repayment of the Promissory Note;
(c) no Legal Proceedings shall have been instituted or
threatened or claim or demand made against MIHI or WinTec which could
reasonably be expected to restrain or prohibit, or to obtain
substantial damages with respect to, the consummation of the
transactions contemplated hereby, and there shall not be in effect any
Order by a Governmental Entity of competent jurisdiction restraining,
enjoining or otherwise prohibiting the consummation of the transactions
contemplated hereby;
(d) MIHI and WinTec shall have obtained all other material
consents, approvals, orders or authorizations of, and registrations
with, and all other material declarations and filings with, any
Governmental Entity required to be obtained or made by them in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby;
(e) MIHI shall have received the items listed in Section 3.3;
and
(g) WinTec shall not be in material breach of the License or
the ROFR Agreement.
ARTICLE IX
TAX MATTERS
9.1 Cooperation on Tax Matters. WinTec and MIHI shall cooperate fully,
as and to the extent reasonably requested by the other party in connection with
the filing of Tax Returns related to the transactions contemplated hereby and
any audit, litigation or other proceeding with respect to Taxes relating to the
Redemption Shares or the Options.
9.2 Payment of Certain Taxes. All transfer, documentary, sales, use,
stamp, registration and other such Taxes and fees (including any penalties and
interest) incurred in connection with the purchase and sale of the Redemption
Shares and the Options pursuant to this Agreement (including any state or local
gains Tax, state or local transfer Tax and any similar Tax imposed in other
states or subdivisions), shall be paid by MIHI when due, and MIHI will, at its
own expense, file all necessary Tax Returns and other documentation with respect
to all such transfer, documentary, sales, use, stamp, registration and other
Taxes and fees; and, if required by applicable law, WinTec will join in the
execution of any such Tax Returns and other documentation.
ARTICLE X
TERMINATION
10.1 Termination of Agreement. This Agreement may be terminated prior
to the Closing as follows:
(a) by either of MIHI, on the one hand, or WinTec, on the
other hand, if there has been a material misrepresentation, material
breach of warranty or material breach of covenant on the part of the
other in the representations, warranties and covenants set forth in
this Agreement; provided, however, that termination by MIHI requires
the written consent of both Xxxxxx and Xxxxxx; or
(b) by mutual written consent of MIHI, WinTec, Xxxxxx, and
Xxxxxx.
10.2 Effect of Termination. In the event that this Agreement is validly
terminated as provided herein, then each of the parties shall be relieved of
their duties and obligations arising under this Agreement, provided, however,
that nothing in this Section 10.2 shall relieve either party of any liability
for a breach of this Agreement prior to the effective date of termination.
ARTICLE XI
RELEASES AND INDEMNIFICATIONS
11.1 Survival of Representations and Warranties. The representations
and warranties of the parties contained in this Agreement shall survive the
Closing until the later of (i) the date which is three (3) years following the
Closing Date, and (ii) the final resolution of any outstanding claims made with
respect to such representations and warranties prior to the date which is three
(3) years following the Closing Date.
11.2 Indemnification by MIHI. Subject to the provisions of this Article
XI, MIHI shall indemnify and hold harmless WinTec and WinTec's shareholders,
directors, officers, subsidiaries, Affiliates, employees, representatives and
successors (collectively, the "WinTec Parties") from and against (i) its portion
of all material loss, costs, damage, liability, obligation, claim or expense
(including reasonable out-of-pocket professional fees and similar expenses)
(collectively the "Indemnified Losses") incurred or suffered by the WinTec
Parties prior to the expiration of the applicable survival period under Section
11.1 as a result of (a) a material breach by MIHI of any material representation
or warranty made by MIHI in this Agreement or (b) a material breach by MIHI of
any material covenant or agreement made or to be performed by MIHI set forth in
this Agreement; or (ii) all Taxes of MIHI and any and all Taxes (or the
nonpayment thereof) imposed on WinTec based on a breach by MIHI of this
Agreement or any of the representations and warranties contained herein;
provided, however, MIHI shall not be liable and shall not provide
indemnification for any Taxes assessed against WinTec due to subsequent actions
by WinTec after the Closing Date that affected any such Taxes.
11.3 Indemnification by WinTec. Subject to the provisions of this
Article XI, WinTec shall indemnify and hold harmless MIHI and MIHI's
shareholders, directors, officers, subsidiaries, Affiliates, employees,
representatives and successors (collectively, the "MIHI Parties") from and
against all Indemnified Losses incurred or suffered by the MIHI Parties prior to
the expiration of the applicable survival period under Section 11.1 as a result
of (i) a material breach by WinTec of any representation or warranty made by
WinTec in this Agreement, or (ii) a material breach by WinTec of any covenant or
agreement made or to be performed by WinTec set forth in this Agreement.
11.4 Material. For purposes of this Article XI, "material" shall be
defined to mean an amount, or an action that causes an amount, in excess of
Twenty-Five Thousand and No/100 Dollars ($25,000.00).
11.5 Limitations on Indemnification. Notwithstanding any other
provision of this Agreement, no party shall be liable for punitive, remote or
speculative damages, and each party hereby waives any right to seek recovery
thereof.
ARTICLE XII
MISCELLANEOUS
12.1 Entire Agreement; Assignment.
(a) This Agreement, together with all written agreements
referenced herein, constitutes the entire agreement between the parties
hereto in respect of the subject matter hereof and supersedes all other
prior agreements and understandings, both written and oral, between the
parties in respect of the subject matter hereof.
(b) This Agreement will be binding upon, inure to the benefit
of and be enforceable by the parties and their respective successors,
heirs, executors and permitted assigns. Except as expressly set forth
herein, nothing in this Agreement is intended to or shall confer upon
any other Person any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement.
(c) No assignment of this Agreement or any rights or
obligations hereunder may be made by any party without the prior
written consent of the other parties hereto and any attempted
assignment without the required consents shall be void, provided, that
a party may by written notice assign its rights under this Agreement to
an Affiliate without the prior consent of the other parties, but in no
event shall such assignment release or limit such assigning party from
any of its obligations under this Agreement, including such assigning
party's obligations under this Section 12.1.
12.2 Notices. All notices, requests, instructions or other documents to
be given under this Agreement shall be in writing and shall be deemed given and
received, (i) three (3) Business Days following sending by registered or
certified mail, postage prepaid, (ii) when sent by facsimile; provided, however,
that the facsimile is promptly confirmed by telephone confirmation thereof,
(iii) when delivered, if delivered personally to the intended recipient, and
(iv) one (1) Business Day following sending by overnight delivery via an
internationally recognized courier service, and in each case, addressed to a
party at the following address for such party:
if to MIHI: Xxxxxx International Holdings, Inc.
Attn: __________________
0000 Xxxxxx Xx., Xxxxxx, XX 00000
Facsimile: ______________
and a copy to: _______________________
Attn:_____________________
__________________________
__________________________
Facsimile: _______________
if to WinTec: WinTec Protective Systems, Inc.
Attn: Xxxxxx Xxxxxxx
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Facsimile: _______________
and a copy to: Xxxx & Xxxxx, PC
(which shall not
constitute notice) Attn: Xxxxxxx X. Xxxx
0000 Xxxx Xxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
or to such other address or facsimile number as the Person to whom notice is
given may have previously furnished to the other in writing in the manner set
forth above.
12.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Texas, without regard to
the conflict of Laws principles thereof.
12.4 Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
12.5 Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable: (i) the parties shall negotiate in
good faith to create a suitable and equitable provision that shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision,
provided that in the event the parties are unable to mutually agree on such a
provision, a competent court of jurisdiction may create such a provision; and
(ii) the remainder of this Agreement and the application of such provision to
other Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
12.6 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
12.7 Costs. Except as otherwise expressly set out in this Agreement,
each party shall bear its own costs in connection with the negotiation,
preparation and implementation of this Agreement.
12.8 Amendment. This Agreement may only be modified, altered or
amended in a writing executed by a duly authorized representative of each party.
12.9 Dispute Resolution. The prevailing party in any litigation,
arbitration, mediation, controversy, or other form of dispute resolution related
to this Agreement and the transactions contemplated hereby shall be entitled to
the award of all reasonable attorneys' fees, expert witness fees, costs, and
expenses related to the prosecution or defense of any such litigation,
arbitration, mediation, controversy, or other form of dispute resolution.
[End of Agreement - Signatures on Following Page]
IN WITNESS WHEREOF, this Agreement has been executed and shall take
effect as of the Effective Date.
XXXXXX INTERNATIONAL WINTEC PROTECTIVE SYSTEMS,
HOLDINGS, INC., a California INC., a Texas corporation
corporation
By: ______________________________
By: ________________________________ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx Chief Executive Officer
President
EXHIBIT A
Form of Resignation
I, _________________________, do hereby tender my resignation as a
Director of WINTEC PROTECTIVE SYSTEMS, INC., a Texas corporation (the
"Corporation"). This resignation shall be effective as of the date this
resignation is accepted by the Corporation.
EXECUTED as of the ___ day of __________, 20___.
Name: ______________________________
EXHIBIT B
Form of Consent Action
Pursuant to the provisions of the Texas Business Organizations Code,
the undersigned, being all of the shareholders and Directors of WINTEC
PROTECTIVE SYSTEMS, INC., a Texas corporation (the "Corporation"), hereby
consent to, ratify and approve the following resolutions, and the same shall
have the same force and effect as if adopted at a formal meeting duly called and
held for the purpose of acting upon a proposal to adopt such resolutions:
Resolutions Approving Redemption and Purchase
RESOLVED, that the conditions precedent for the closing of the
Stock Redemption and Purchase Agreement (the "Redemption and Purchase
Agreement") by and between the Corporation and Xxxxxx International
Holdings, Inc., a California corporation ("MIHI"), have been satisfied
or waived by the Corporation and/or MIHI;
RESOLVED, that pursuant to the Redemption and Purchase
Agreement, the Corporation shall redeem and liquidate the Redemption
Shares (as such term is defined in the Redemption and Purchase
Agreement) and receive from MIHI the Options (as such term is defined
in the Redemption and Purchase Agreement), as more particularly set
forth in the Redemption and Purchase Agreement (the "Redemption and
Purchase Transaction");
RESOLVED, that the Directors have determined that the
Corporation will not be insolvent after giving effect to the Redemption
and Purchase Transaction, and the liquidation, redemption, and purchase
will not exceed the surplus of the Corporation;
RESOLVED, that the material facts as to the relationship and
interest of MIHI in the sale of the Options, and the material facts as
to the Redemption and Purchase Transaction, are known to the
shareholders and the Board of Directors, and such purchase of the
Options and the Redemption and Purchase Transaction and the Redemption
and Purchase Agreement is fair to the Corporation;
RESOLVED, that the closing of the Redemption and Purchase
Agreement be and hereby is approved, authorized, ratified and confirmed
on behalf of the Corporation, and the appropriate officers of the
Corporation are hereby authorized and directed to execute and deliver
such documents and instruments on behalf of the Corporation, and to
take all necessary actions to implement the Redemption and Purchase
Transaction;
RESOLVED, that by their signatures hereto, the shareholders
and Directors of the Corporation hereby authorize (a) the redemption of
the Redemption Shares and (b) the receipt of the Options, all as
contemplated by the Redemption and Purchase Agreement, and the payment
the consideration pursuant to such Redemption and Purchase Agreement;
RESOLVED, that the Redemption Shares redeemed by the
Corporation be retained by the Corporation and the Redemption Shares
not be issued to the remaining shareholders, or new shareholders,
without adequate consideration;
RESOLVED, that the stock certificate(s) issued to MIHI be
canceled, and a new stock certificate be issued to MIHI, evidencing its
remaining ownership of eight million (8,000,000) shares of common stock
of the Corporation;
RESOLVED, that the President and Secretary of the Corporation
be and hereby are authorized, empowered and directed to issue and
deliver a certificate representing such stock to MIHI, and that such
shares when so issued and delivered shall be fully paid and
non-assessable shares;
Resolutions Reducing the Number of Directors
RESOLVED, that the resignation of ____________________ as
Director of the Corporation, effective as of the date of these
resolutions, is hereby acknowledged and accepted;
RESOLVED, that the number of Directors constituting the entire
Board of Directors of the Corporation shall decrease from seven (7) to
six (6) pursuant to Section 3.2 of the Bylaws of the Corporation;
RESOLVED, that the President and Secretary of the Corporation
be and hereby are authorized, empowered and directed to issue and
deliver certificates representing such stock to Xxxxxx and Xxxxxx, and
that such shares when so issued and delivered shall be fully paid and
non-assessable shares; and
RESOLVED, that the proper officers of the Corporation be and
they hereby are authorized and directed to execute, in the name and on
behalf of the Corporation and under its corporate seal or otherwise,
certificates, applications or other instruments and to take from time
to time any and all such actions necessary or desirable to carry out
the purpose of the foregoing resolutions.
EXECUTED to be effective as of ____________________, 20___.
DIRECTORS:
------------------------------------ --------------------------------
XXX HELD XXXXXX XXXXXXX
------------------------------------ --------------------------------
XXXX XXXXX Name: __________________________
------------------------------------ --------------------------------
XXXXXX XXXXXX Name: __________________________
SHAREHOLDERS:
XXXXXX INTERNATIONAL PLH HOLDINGS, LLC, a Texas limited
HOLDINGS, INC., a California liability company
corporation
By: ________________________________
By: _________________________ Xxx Held, President
Xxxxxx Xxxxxx, President
EXHIBIT C
Form of Stock Option Award Agreement
