ACQUISITION AGREEMENT
Agreement dated as of 11/25/97 between Big Tex Enterprises, Inc., a Nevada
corporation ("Buyer") on behalf of its shareholders, and Xxxxxxxxx Internet
Works, a Delaware corporation ("Seller") on behalf of its shareholders.
The parties wish to provide for Seller's sale of the Shares to Buyer and Buyer's
purchase of the Shares from Seller on the terms and conditions of this
Agreement.
The parties agree as follows:
1. The Acquisition.
1.1 Purchase and Sale Subject to the terms and conditions
of this Agreement, at the Closing to be held as
provided in Section 2, Seller shall sell the Shares
to Buyer, and Buyer shall purchase the Shares from
Seller, free and clear of all encumbrances. Buyer
shall change it's name to .
1.2 Purchase Price. Purchaser will exchange 7,000,000
shares of its restricted stock for all of the
outstanding capital stock of Xxxxxxxxx. 3,000,000 of
the shares will be provided by Xxxxxx Xxxxxxx, the
current President, along with medalion guaranteed
stock powers, and the other 4 million shall be issued
from treasury. 1 million of the 4 million shares to
be issued from treasury shall be preferred stock
which is convertible to common stock with 3 to 1
voting rights over all common stock. The authorized
common stock of the corporation consists of
100,000,000 shares.
1.3 At the time of the closing, which is to occur prior
to 12-17-97, Big Tex will have available to it
$50,000.00 which is to be arranged by its current
investors for the benefit of Xxxxxxxxx.
1.4 Following the closing, the current investors of Big
Tex will use their best efforts to generate an
additional $450,000.00 in investment in the company
over a 12 month period from closing.
2. The Closing.
2.1 Place and Time. The closing of the sale and purchase
of the Shares (the "Closing") shall take place at the
offices of Xxxxx Xxxxxxx, Esq. 0000 X. Xxxxxx Xxx Xx.
#000-X, Xxx Xxxxx, XX 00000 no later than the close
of business (Las Vegas time) on 12/17/97, or at such
other place, date and time as the parties may agree
in writing.
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2.2 Deliveries by Seller. Seller shall deliver the
following to Buyer:
(a) Within 3 months following the closing Seller
shall deliver Certificates representing the
Shares, duly endorsed for transfer to buyer
and accompanied by any applicable stock
transfer tax stamps; Seller shall cause Big
Tex Enterprises, Inc. to change those
certificates for, and to deliver to Buyer at
the Closing, a certificate representing the
Shares registered in the name of Buyer
(without any legend or other reference to
any Encumbrance).
(b) At closing, the Seller shall deliver the
documents contemplated by Section 3.
(c) At Closing, Seller shall deliver all other
documents, instruments and writings required
by this Agreement to be delivered by Seller
at the Closing and any other documents or
records relating to Xxxxxxxxx'x business
reasonably requested by Buyer in connection
with this Agreement.
2.3 Deliveries by Buyer. At the Closing, Buyer shall
deliver the following to Seller:
(a) The shares as contemplated by section 1.
(b) The documents contemplated by Section 4.
(c) All other documents, instruments and
writings required by this Agreement to be
delivered by Buyer at the Closing.
3. Conditions to Buyer's Obligations.
The obligations of Buyer to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Buyer:
3.1 Representations, Warranties and Agreements.
(a) The representations and warranties of Seller
set forth in this Agreement shall be true
and complete in all material respects as of
the Closing Date as though made at such
time, (b) Seller shall have performed and
complied in all material respects with the
agreements contained in this Agreement
required to be performed and complied with
by it at or prior to the Closing and (c)
Buyer shall have received a certificate to
that effect signed by an authorized
representative of Seller.
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3.2 Resignations of Director. Resignations have hereby
been requested of all directors of Big Tex
Enterprises, Inc. and its Subsidiaries and such
directors shall have submitted their resignations or
been removed effective as of the Closing Date.
3.3 The new Board will be appointed on closing, and shall
consist of such Board members as are appointed by
Seller.
4. Conditions to Seller's Obligations.
The obligations of Seller to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Seller:
4.1 Representations, Warranties and Agreements.
(a) The representations and warranties of Buyer set forth
in this Agreement shall be true and complete in all
material respects as of the Closing Date as though
made at such time, (b) Buyer shall have performed and
complied in all material respects with the agreements
contained in this Agreement required to be performed
and complied with by it prior to or at the Closing
and (c) Seller shall have received a certificate to
that effect signed by an officer of Buyer.
5. Representations and Warranties of Seller.
Seller represents and warrants to Buyer that, to the Knowledge of Seller (which
limitation shall not apply to Section 5.3) and except as set forth in the
Disclosure Letter:
5.1 Organization of Seller; Authorization. Seller is a
corporation duly organized, validly existing and in
good standing under the laws of Delaware with full
corporate power and authority to execute and deliver
this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all
necessary corporate action of Seller and this
Agreement constitutes a valid and binding obligation
of Seller, enforceable against it in accordance with
its terms.
5.2 No Conflict as to Seller. Neither the execution and
delivery of this Agreement nor the consummation of
the sale of the Shares to Buyer will (a) violate any
provision of the certificate of incorporation or
by-laws of Seller or (b) violate, be in conflict
with, or constitute a default (or an event which,
with notice or lapse of time or both, would
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constitute a default) under any agreement to which
Seller is a party or (c) violate any statute or law
or any judgment, decree, order, regulation or rule of
any court or other Governmental Body applicable to
Seller.
(b) an unaudited consolidated summary balance
sheet of Xxxxxxxxx and its Subsidiaries as
at 9/30/97 (the "Balance Sheet"), as well as
consolidated summary statements of operating
results and cash generation for the three
months ending thereon. Such financial
statements and notes fairly present the
consolidated financial condition and results
of operations of Xxxxxxxxx and its
Subsidiaries as at the respective dates
thereof and for the periods therein referred
to, all in accordance with generally
accepted United States accounting principles
consistently applied throughout the periods
involved, except as set forth in the notes
thereto, except, in the case of the Balance
Sheet and the accompanying statements, for
audit adjustments and the absence of
footnotes.
5.5 Title to Properties. Either Xxxxxxxxx or one of its
Subsidiaries owns all of the material properties and
assets that they purport to own (real, personal and
mixed, tangible and intangible), including, without
limitation, all the material properties and assets
reflected in the Balance Sheet (except for property
sold since the date of the balance Sheet in the
ordinary course of business or leased under
capitalized leases), and all the material properties
and assets purchased or otherwise acquired by
Xxxxxxxxx or any of its Subsidiaries since the date
of the Balance Sheet.
5.6 Buildings, Plants and Equipment. The buildings,
plants, structures and material items of equipment
and other personal property owned or leased by
Xxxxxxxxx or its Subsidiaries are, in all respects,
material to the business or financial condition of
Xxxxxxxxx and its Subsidiaries, taken as a whole, in
good operating condition and repair (ordinary wear
and tear excepted) and are adequate in all such
respects for the purposes for which they are being
used.
5.7 Litigation. There is no action, suit, inquiry,
proceeding or investigation by or before any court or
Governmental Body pending or threatened in writing
against or involving Kanakaris or any of its
Subsidiaries which is likely to have a material
adverse effect on the business or financial condition
of Big Tex and its Subsidiaries, taken as whole, or
which would require a payment by Big Tex or its
Subsidiaries in excess of $2000 in the aggregate or
which questions or challenges the validity of this
Agreement. Neither Xxxxxxxxx nor any or its
Subsidiaries is subject to any judgment, order or
decree that is likely to have a material adverse
effect on the business or financial condition of Big
Tex and its Subsidiaries, taken as a whole, or which
would require a payment by Big Tex or its
Subsidiaries in excess of $2000 in the aggregate.
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5.8 Absence of Certain Changes. Since the date of the
Balance Sheet, neither Kanakaris nor any of its
Subsidiaries has:
(a) suffered the damage or destruction of any of
its properties or assets (whether or not
covered by insurance) which is materially
adverse to the business or financial
condition of Xxxxxxxxx and its Subsidiaries,
taken as a whole, or made any disposition of
any of its material properties or assets
other than in the ordinary course of
business;
(b) made any change or amendment in its
certificate of incorporation or by-laws, or
other governing instruments;
(c) issued or sold any Equity Securities or
other securities, acquired, directly or
indirectly, by redemption or otherwise, any
such Equity Securities, reclassified,
split-up or otherwise changed any such
Equity Security, or granted or entered into
any options, warrants, calls or commitments
of any kind with respect thereto;
(d) borrowed any funds (other than from Seller
or Big Tex or one of its Subsidiaries) or
incurred, or assumed or become subject to,
whether directly or by way of guarantee or
otherwise, any obligation or liability with
respect to any such indebtedness for
borrowed money;
(e) paid, discharged or satisfied any material
claim, liability or obligation (absolute,
accrued, contingent or otherwise), other
than in the ordinary course of business;
(f) prepaid any material obligation having a
maturity of more than 90 days from the date
such obligation was issued or incurred;
(g) cancelled any material debts or waived any
material claims or rights, except in the
ordinary course of business;
(h) made any capital expenditures or additions
to property, plant or equipment or acquired
any other property or assets (other than raw
materials and supplies) at a cost in excess
of $2000 in the aggregate;
(i) written off or been required to write off
any notes or accounts receivable in an
aggregate amount in excess of $2000;
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(j) other than the ordinary course of business,
incurred any liability required by generally
accepted accounting principles to be
reflected on a balance sheet and material to
the business or financial condition of
Xxxxxxxxx and its Subsidiaries taken as a
whole.
5.9 No Material Adverse Change. Since the date of the
Balance Sheet, there has not been any material
adverse change in the business or financial condition
of Xxxxxxxxx and its Subsidiaries taken as a whole,
other than changes resulting from economic conditions
prevailing in the United States.
5.10 Brokers or Finders. Seller has not employed any
broker or finder or incurred any liability for any
brokerage or finder's fees or commissions or similar
payments in connection with the sale of the shares to
Buyer.
5.11 Transactions with Directors and Officers. Xxxxxxxxx
and its Subsidiaries do not engage in business with
any Person (other than Seller) in which any of
Xxxxxxxxx'x directors or officers has a material
equity interest. No director or officer of Xxxxxxxxx
owns any property, asset or right which is material
to the business of Xxxxxxxxx and its Subsidiaries,
taken as a whole.
5.12 Borrowing and Guarantees. Except for advances from
Buyer, Xxxxxxxxx and its Subsidiaries (a) do not have
any indebtedness for borrowed money, (b) are not
lending or committed to lend any money (except for
advances to employees in the ordinary course of
business), and (c) are not guarantors or sureties
with respect to the obligations of any Person.
6. Representations and Warranties of Buyer.
Buyer represents and warrants to Seller as follows:
6.1 Organization of Buyer; Authorization. Buyer is a
corporation duly organized, validly existing and in
good standing under the laws of Nevada, with full
corporate power and authority to execute and deliver
this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all
necessary corporate action of Buyer and this
Agreement constitutes a valid and binding obligation
of Buyer, enforceable against it in accordance with
its terms.
6.2 Conflict as to Buyer. Neither the execution and
delivery of this Agreement nor the performance of
Buyer's obligations hereunder will (a) violate any
provision of the certificate of incorporation or
by-laws of Buyer, (b) violate, be in conflict with,
or constitute a default (or an event which, with
notice of lapse of time or both, would constitute a
default) under any agreement or commitment to which
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Buyer is party or (c) violate any statue or law or
any judgment, decree, order, regulation or rule of
any court or other Governmental Body applicable to
Buyer.
6.3 Brokers or Finders. Buyer has not employed any broker
or finder or incurred any liability for any brokerage
or finder's fees or commissions or similar payments
in connection with any of the transactions
contemplated hereby.
6.4 Purchase for Investment. Buyer is purchasing the
shares solely for its own account for the purpose of
investment and not with a view to, or for sale in
connection with, any distribution of any portion
thereof in violation of any applicable securities
law.
7. Access and Reporting; Filings With Governmental Authorities.
7.1 Access. Between the date of this Agreement and the
Closing Date, Seller shall, and shall cause Xxxxxxxxx
to, (a) give Buyer and its authorized representatives
reasonable access to all plants, offices, warehouse
and other facilities and properties of Xxxxxxxxx and
its Subsidiaries and to the books and records of
Xxxxxxxxx and its Subsidiaries, (b) permit Buyer to
make inspections thereof, and (c) cause its officers
and its advisors to furnish Buyer with such financial
and operating data and other information with respect
to the business and properties of Xxxxxxxxx and its
Subsidiaries and to discuss with Buyer and its
authorized representatives the affairs of Xxxxxxxxx
and its Subsidiaries, all as Buyer may from time to
time reasonably request.
7.2 Exclusivity. From the date hereof until the earlier
of the Closing or the termination of this Agreement,
Seller shall not solicit or negotiate or enter into
any agreement with any other Person with respect to
or in furtherance of any proposal for a merger or
business combination involving, or acquisition of any
interest in, or (except in the ordinary course of
business) sale of assets by, Kanakaris, except for
the acquisition of the Shares by Buyer.
7.3 Publicity. Between the date of this Agreement and the
Closing Date, Seller and Buyer shall, and Seller and
buyer shall cause Big Tex to, discuss and coordinate
with respect to any public filing or announcement or
any internal or private announcement (including any
general announcement to employees) concerning the
contemplated transaction.
7.4 Confidentiality. Prior to the closing Date (or at any
time if the Closing does not occur) buyer shall keep
confidential and not disclose to any Person (other
than its employees, attorneys, accountants and
advisors) or use (except in connection with the
transactions contemplated hereby) all nonpublic
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information obtained by Buyer pursuant to Section
7.1. Following the Closing, Seller shall keep
confidential and not disclose to any Person (other
than its employees, attorneys, accountants and
advisors) or use (except in connection with preparing
Tax Returns and conducting proceeds relating to
Taxes) any nonpublic information relating to Big Tex
and its Subsidiaries. This Section 7.7 shall not be
violated by disclosure pursuant to court order or as
otherwise required by law, on condition that notice
of the requirement for such disclosure is given to
other party prior to making any disclosure and the
party subject to such requirement cooperates as the
other may reasonably request in resisting it. If the
Closing does not occur, Buyer shall return to Seller,
or destroy all information it shall have received
from Seller or Xxxxxxxxx in connection with this
Agreement and the transactions contemplated hereby,
together with any copies or summaries thereof or
extracts therefrom. Seller and Buyer shall use their
best efforts to cause their respective
representatives, employees, attorneys, accountants
and advisors to whom information is disclosed
pursuant to Section 7.1 and 7.6 to comply with the
provisions of this Section 7.7.
8. Conduct of Xxxxxxxxx'x Business Prior to the Closing.
8.1 Operation in Ordinary Course. Between the date of
this Agreement and the Closing Date, Seller shall
cause Xxxxxxxxx and its Subsidiaries to conduct their
business in all material respects in the ordinary
course.
8.2 Business Organization. Between the date of this
Agreement and the Closing Date, Seller shall use its
reasonable efforts, and shall cause Xxxxxxxxx and
each of its Subsidiaries to use its respective
reasonable efforts, to (a) preserve substantially
intact the business organization of Xxxxxxxxx and
each of its Subsidiaries and keep available the
services of the present officers and employees of
Xxxxxxxxx and each of its Subsidiaries, and (b)
preserve in all material respects the present
business relationships and good will of Xxxxxxxxx and
each of its Subsidiaries.
8.3 Corporate Organization. Between the date of this
Agreement and the Closing Date, Seller shall not
cause or permit any amendment of the certificate of
incorporation or by-laws (or other governing
instrument) of Kanakaris or any of its Subsidiaries,
and shall cause Xxxxxxxxx and each of its
Subsidiaries not to:
(a) issue, sell or otherwise dispose of any of
its Equity Securities, or create, sell or
otherwise dispose of any options, rights,
conversion rights or other agreements or
commitments of any kind relating to the
issuance, sale or disposition of any of its
Equity Securities;
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(b) sell or otherwise dispose of any Equity
Securities of Xxxxxxxxx or any of its
Subsidiaries, or create or suffer to be
created any Encumbrance thereon, or create,
sell or otherwise dispose of any options,
rights, conversion rights or other
agreements or commitments of any kind
relating to the sale or disposition of any
Equity Securities of Xxxxxxxxx or any of its
Subsidiaries;
(c) reclassify, split up or otherwise change any
of its Equity Securities;
(d) be party to any merger, consolidation or
other business combination;
(e) sell, lease, license or otherwise dispose of
any of its properties or assets (including,
but not limited to rights with respect to
patents and registered trademarks and
copyrights or other proprietary rights), in
an amount which is material to the business
or financial condition of Xxxxxxxxx and its
Subsidiaries, taken as a whole, except in
the ordinary course of business.
8.4 Other Restrictions. Between the date of this
Agreement and the Closing Date, Seller shall cause
Xxxxxxxxx and each of its Subsidiaries not to:
(a) borrow any funds or otherwise become subject
to, whether directly or by way of guarantee
or otherwise, any indebtedness for borrowed
money other than borrowings from Seller, Big
Tex or another of its Subsidiaries;
(b) create any material Encumbrance on any of
its material properties or assets;
(c) except in the ordinary course of business,
increase in any manner the compensation of
any director or officer or increase in any
manner the compensation of any class of
employees;
(d) make any capital expenditure or acquire any
property or assets (other than raw materials
and supplies) for a cost in excess of $2,000
in any one case or $5,000 in the aggregate;
(e) enter into any agreement that materially
restricts Xxxxxxxxx or any of its
Subsidiaries from carrying on its business;
(f) pay, discharge or satisfy any material
claim, liability or obligation, absolute,
accrued, contingent or otherwise, other than
the payment, discharge or satisfaction in
the ordinary course of business of
liabilities or obligations reflected in the
Balance Sheet or incurred in the ordinary
course of business and consistent with past
practice since the date of the Balance
sheet; or
(g) cancel any material debts or waive any
material claims or rights.
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9. Survival of Representations and Warranties; Indemnification.
9.1 Survival. No representation or warranty contained in
this Agreement or in any certificate of document
delivered pursuant hereto shall survive the Closing,
except for those contained in Sections 5.1, 5.2, 5.3
(only as to Seller), 5.10, 6.1, 6.2, 6.3, 6.4 (the
"Surviving Representations and Warranties").
9.2 Indemnification by Seller. Seller shall indemnify and
hold harmless Buyer and Big Tex and shall reimburse
Buyer and Big Tex for any loss, liability, damage or
expense (including reasonable attorneys fees)
(collectively, "Damages") arising from or in
connection with (a) any inaccuracy in any of the
Surviving Representations and Warranties of Seller in
this Agreement or (b) any failure by Seller to
perform or comply with any agreement in this
Agreement.
9.3 Indemnification by Buyer. Buyer shall indemnify and
hold harmless Seller and shall reimburse Seller for
any Damages arising from or in connection with (a)
any inaccuracy in any of the Surviving
representations and Warranties of Buyer in this
Agreement, (b) any failure by Buyer to perform or
comply with any agreement in this Agreement, except
that after the Closing, no claim shall be made with
respect to the failure to perform or comply with any
agreement required to have been performed or complied
with prior to the Closing Date, (c) any claims
arising from the conduct of the business of Kanakaris
and the Subsidiaries after the Closing and (d) any
payments made by Seller after the Closing pursuant to
any guaranty by Seller of any obligation of Big Tex
or any of its Subsidiaries (other than as
contemplated by Section 2.4). Buyer shall use its
best efforts to obtain Seller's release from any such
guaranties.
10. Termination.
10.1 Termination. This Agreement may be terminated before
the Closing occurs only as follows:
(a) By written agreement of Seller and Buyer at
any time.
(b) By Seller, by notice to Buyer at any time,
if one or more of the conditions specified
in Section 4 is not satisfied at the time at
which the Closing (as it may be deferred
pursuant to Section 2.1) would otherwise
occur or if satisfaction of such a condition
is or becomes impossible.
(c) By Buyer, by notice to Seller at any time,
if one or more of the conditions specified
in Section 3 is not satisfied at the time at
which the Closing (as it may be deferred
pursuant to Section 2.1), would otherwise
occur or if satisfaction of such a condition
is or becomes impossible.
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(d) By Buyer or Seller, by notice to the other
at any time after 12-17-97.
10.2 Effect of Termination. If this Agreement is
terminated pursuant to Section 12.1, this Agreement
shall terminate without any liability or further
obligation of any party to another.
11. Notices.
All notices, consents, assignments and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given when (a)
delivered by hand, (b) sent by telex or telecopier (with receipt confirmed),
provided that a copy is mailed by registered mail, return receipt requested, or
(c) received by the delivery service (receipt requested), in each case to the
appropriate addresses, telex numbers and telecopier numbers set forth below (or
to such other addresses, telex numbers and telecopier numbers as a party may
designate as to itself by notice to the other parties).
(a) If to Buyer or Big Tex: (b) If to Seller:
c/o Xxxxx X. Xxxxxxx, Esq. Xxxxxxxxx Communications
0000 X. Xxxxxx Xxx Xx. #206-A 00000 Xxxxxxx Xxxxx Xxxxxxx Xxxxx 00
Xxx Xxxxx, XX 00000 Xxxx Xxxxx Xxxxxxx, Xxxxxx, XX 00000
Telecopier No.: 702-732-2253 Telecopier No.: 000-000-0000
Attention: Xxxxx X. Xxxxxxx Attention: Xxxx Xxxxxxxxx
12. Miscellaneous.
12.1 Expenses. Each party shall bear its own expenses
incident to the preparation, negotiation, execution
and delivery of this Agreement and the performance of
its obligations hereunder.
12.2 Captions. The captions in this Agreement are for
convenience of reference only and shall not be given
any effect in the interpretation of this agreement.
12.3 No Waiver. The failure of a party to insist upon
strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver or deprive
that party of the right thereafter to insist upon
strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing.
12.4 Exclusive Agreement; Amendment. This Agreement
supersedes all prior agreements among the parties
with respect to its subject matter, including the
Letter of Intent (but shall not effect the provisions
of the letter dated November 19, 1997 between Seller
and Big Tex, which shall be terminated upon the
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Closing), and is intended (with the documents
referred to herein) as a complete and exclusive
statement of the terms of the agreement among the
parties with respect thereto and cannot be changed or
terminated orally.
12.5 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be
considered an original, but all of which together
shall constitute the same instrument.
12.6 Governing Law. This Agreement and (unless otherwise
provided) all amendments hereof and waivers and
consents hereunder shall be governed by the internal
law of the State of Nevada, without regard to the
conflicts of law principles thereof.
12.7 Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and
their respective successors and assigns, provided
that neither party may assign its rights hereunder
without the consent of the other except that buyer
may assign its rights (but not its obligations) under
this Agreement to its wholly-owned Subsidiary without
the consent of Seller, provided that, after the
Closing, no consent of Seller shall be needed in
connection with any merger or consolidation of Buyer
with or into another entity.
Big Tex Enterprises, Inc.
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/S/ XXXXXXX XXXXXX
--------------------------------
By Xxxxxxx Xxxxxx-Vice President
Xxxxxxxxx Communications
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/S/ XXXX XXXXXXXXX
---------------------------------
By Xxxx Xxxxxxxxx-President & CEO
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