AGREEMENT AND PLAN OF MERGER
dated as of September 30, 2001
by and between
▇▇▇▇▇▇ Corporation
and
AZ Acquisition Corp.
THIS AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of September
30, 2001, is entered into by and between ▇▇▇▇▇▇ Corporation, a Delaware
corporation ("▇▇▇▇▇▇ Corp."), and AZ Acquisition Corp., a Delaware corporation
("AZ Corp."). Certain capitalized terms used in this Agreement are defined in
Section 9.3 hereof.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the respective Boards of Directors of ▇▇▇▇▇▇ Corp. and AZ
Corp. have determined that it would be advisable and in the best interests of
the stockholders of ▇▇▇▇▇▇ Corp. and AZ Corp., respectively, for ▇▇▇▇▇▇ Corp. to
merge with and into AZ Corp. pursuant and subject to the terms and conditions
set forth in this Agreement (the "Merger");
WHEREAS, the Merger is contingent upon its approval and ratification by
the stockholders of ▇▇▇▇▇▇ Corp. but not the stockholders of AZ Corp. pursuant
to the requirements of the Plan (as hereinafter defined);
WHEREAS, ▇▇▇▇▇▇ Corp. and AZ Corp. desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger; and
WHEREAS, all of the parties hereto desire that the transaction
contemplated herein be treated as a tax-free merger transaction pursuant to
Section 368 of the Code.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereto hereby
agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the applicable provisions of
the Delaware General Corporation Law ("DGCL"), the Merger shall be effected and
▇▇▇▇▇▇ Corp. shall be merged with and into AZ Corp. at the Effective Time (as
defined in Section 1.3), the separate existence of ▇▇▇▇▇▇ Corp. shall cease and
AZ Corp. shall continue as the surviving corporation in the Merger. The
surviving corporation of the Merger shall be herein referred to as the
"Surviving Corporation."
SECTION 1.2 Closing. Unless this Agreement shall have been terminated
and the transactions herein contemplated shall have been abandoned pursuant to
Section 8.1, and subject to the satisfaction or waiver of the conditions set
forth in Article VII, the closing of the Merger (the "Closing") will take place
as soon as practicable following the last to be satisfied or waived of the
conditions set forth in Article VII in accordance with this Agreement (the
"Closing Date"), unless another date, time or place is agreed to in writing by
the parties hereto.
SECTION 1.3. Effective Time. Contemporaneously with the Closing, the
Surviving Corporation will file with the Secretary of State of the State of
Delaware (the "Delaware Secretary of State") a certificate of merger or other
appropriate documents, executed in accordance with the relevant provisions of
the DGCL, and make all other filings or recordings required under the DCGL in
connection with the Merger. The Merger shall become effective upon the filing of
the certificate of merger with the Delaware Secretary of State (the "Effective
Time").
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SECTION 1.4 Effects of the Merger. The Merger shall have the effects
set forth in this Agreement and in the applicable provisions of the DGCL.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the properties, rights, privileges, powers and franchises of
▇▇▇▇▇▇ Corp. shall vest in the Surviving Corporation, and all debts, liabilities
and duties of ▇▇▇▇▇▇ Corp. shall become the debts, liabilities and duties of the
Surviving Corporation.
SECTION 1.5 Certificate of Incorporation; Bylaws. At the Effective
Time, (a) AZ Corp.' certificate of incorporation shall be the certificate of
incorporation of the Surviving Corporation, and (b) the bylaws of AZ Corp. as in
effect at the Effective Time shall, from and after the Effective Time, be the
bylaws of the Surviving Corporation until thereafter changed or amended as
provided therein or by applicable law.
SECTION 1.6 Directors; Officers. (i) At the Effective Time, (a) the
directors of ▇▇▇▇▇▇ Corp. shall be the directors of the Surviving Corporation,
each of whom will serve until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified, as the case
may be, and (b) the officers of ▇▇▇▇▇▇ Corp. shall be the officers of the
Surviving Corporation, until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified, as the case
may be.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL
STOCK OF THE CONSTITUENT CORPORATIONS
SECTION 2.1 Effect on Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the parties hereto or
any holder of any shares of capital stock of ▇▇▇▇▇▇ Corp., all shares ("▇▇▇▇▇▇
Corp. Shares") of common stock, $.001 par value ("▇▇▇▇▇▇ Corp. Common Stock"),
of ▇▇▇▇▇▇ Corp. issued and outstanding immediately prior to the Effective Time
shall be converted into an aggregate of 525,000 shares of AZ Corp. Common Stock
(the "Merger Consideration"), which shares shall represent approximately 51% of
the issued and outstanding AZ Corp. Common Stock as of the Effective Time.
SECTION 2.2 Adjustments. If at any time during the period between the
date of this Agreement and the Effective Time, any change in the outstanding
capital stock of AZ Corp. shall occur, including by reason of any
reclassification, recapitalization, stock dividend, stock split, or combination,
exchange or readjustment of shares of capital stock of AZ Corp., or any stock
dividend thereof, the Merger Consideration shall be appropriately adjusted.
SECTION 2.3 Further Assurances. If, at any time after the Effective
Time, the Surviving Corporation shall determine or be advised that any deeds,
bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or otherwise in the
Surviving Corporation the right, title or interest in, to or under any of the
rights, properties or assets of ▇▇▇▇▇▇ Corp. acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the Surviving Corporation shall be
authorized to execute and deliver, in the name and on behalf of ▇▇▇▇▇▇ Corp.,
all such deeds, bills of sale, assignments and assurances and to take and do, in
the name and on behalf of ▇▇▇▇▇▇ Corp. or otherwise, all such other actions and
things as may be necessary or desirable to vest, perfect or confirm any and all
right, title and interest in, to and under such rights, properties or assets in
the Surviving Corporation or otherwise to carry out this Agreement.
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ARTICLE III
PAYMENT FOR SHARES
SECTION 3.1 Letter of Transmittal; Surrender of Certificates. Promptly
after the Effective Time, AZ Corp. shall mail to each holder of record of a
certificate or certificates which, immediately prior to the Effective Time,
evidence outstanding shares of the capital stock of ▇▇▇▇▇▇ Corp. (the
"Certificates"), (i) a form of letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon proper delivery of the Certificates to AZ Corp., and shall be in
such form and have such other provisions as AZ Corp. may reasonably specify) and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for new certificates of AZ Corp. representing such holders new interest
in AZ Corp.. Upon surrender of a Certificate for cancellation to the AZ Corp.
together with such letter of transmittal, duly executed, and such other
customary documents as may be required pursuant to such instructions, the holder
of such Certificate shall be entitled to receive in respect thereof a new
certificate evidencing such holders new interest in AZ Corp..
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of AZ Corp. AZ Corp.
represents and warrants to ▇▇▇▇▇▇ Corp. as follows:
(a) Organization, Standing and Power. AZ Corp. is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is incorporated and has the requisite corporate power and authority to
carry on its business as now being conducted. AZ Corp. is duly qualified or
licensed to do business and is in good standing in each jurisdiction in which
the nature of its business or the ownership or leasing of its properties makes
such qualification or licensing necessary, other than in such jurisdictions
where the failure to be so qualified or licensed (individually or in the
aggregate) would not have a AZ Corp. Material Adverse Effect. For purposes of
this Agreement, the term "AZ Corp. Material Adverse Effect" means any Material
Adverse Effect with respect to AZ Corp., taken as a whole, or any change or
effect that adversely, or is reasonably expected to adversely, affect the
ability of AZ Corp. to consummate the transactions contemplated by this
Agreement in any material respect or materially impairs or delays AZ Corp.'
ability to perform its obligations hereunder. AZ Corp. has made available to
▇▇▇▇▇▇ Corp. complete and correct copies of its charter or organizational
documents, as amended to the date of this Agreement.
(b) Capital Structure. The authorized capital stock of AZ Corp.
consists of 40,000,000 shares of common stock, par value $.001 per share (the
"AZ Corp. Common Stock") and 10,000,000 shares of preferred stock, par value
$.001 per share. On the date hereof: (i) 500,509 shares of AZ Corp. Common Stock
were issued and outstanding, (ii) no shares of AZ Corp. Common Stock were held
by AZ Corp. in its treasury and (iii) no shares of preferred stock were issued
and outstanding. All outstanding shares of capital stock of AZ Corp. have been
duly authorized and validly issued, and are fully paid and nonassessable and not
subject to preemptive or similar rights. No bonds debentures, notes or other
indebtedness of AZ Corp. having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on which
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the stockholders of AZ Corp. may vote are issued or outstanding. Except for this
Agreement, AZ Corp. has no or, at or after the Effective Time will not have, any
outstanding option, warrant, call, subscription or other right, agreement or
commitment which either (i) obligates AZ Corp. to issue, sell or transfer,
repurchase, redeem or otherwise acquire or vote any shares of its capital stock,
or (ii) restricts the voting, disposition or transfer of shares of its capital
stock. There are no outstanding stock appreciation rights or similar derivative
securities or rights of AZ Corp.. No Person has any right to require the
registration of any shares of AZ Corp. Common Stock or any other securities of
AZ Corp..
(c) Authority: Noncontravention. AZ Corp. has the requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by AZ Corp. and the consummation by AZ Corp. of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of AZ Corp.. This Agreement has been duly executed and delivered by
AZ Corp. and, assuming this Agreement constitutes the valid and binding
agreement of ▇▇▇▇▇▇ Corp., constitutes a valid and binding obligation of AZ
Corp., enforceable against each of AZ Corp. in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies and to general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity). The execution
and delivery of this Agreement do not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions hereof will
not, (i) conflict with any of the provisions of the charter or organizational
documents of AZ Corp., (ii) subject to the governmental filings and other
matters referred to in the following sentence, conflict with, result in a breach
of or default (with or without notice or lapse of time, or both) under, or give
rise to a right of first refusal, termination, cancellation or acceleration of
any obligation (including to pay any sum of money) or loss of a benefit under,
or require the consent of any person under, any indenture or other agreement,
permit, concession, ground lease, franchise, license or similar instrument or
undertaking to which AZ Corp. is a party or by which AZ Corp. or any of its
assets are bound, result in the creation or imposition of a material Lien or
other restriction or encumbrance on any material asset of AZ Corp., which,
singly or in the aggregate, would have a AZ Corp. Material Adverse Effect, or
(iii) subject to the governmental filings and other matters referred to in the
following sentence, violate any domestic or foreign law, rule or regulation or
any order, writ, judgment, injunction, decree, determination or award currently
in effect except for such violations, which, singly or in the aggregate, would
only have an immaterial effect. No consent, approval or authorization of, or
declaration or filing with, or notice to, any domestic or foreign governmental
agency or regulatory authority (a "Governmental Entity") or any third party
which has not been received or made, is required by or with respect to AZ Corp.
in connection with the execution and delivery of this Agreement by AZ Corp. or
the consummation by AZ Corp. of the transactions contemplated hereby, except for
(i) the filing of the articles of merger with the Texas Secretary of State and
the Delaware Secretary of State (ii) consents, approvals, authorizations,
declarations, filings and notices that, if not obtained or made, will not,
individually or in the aggregate, result in a AZ Corp. Material Adverse Effect.
(d) Subsidiaries. AZ Corp. does not own, directly or indirectly,
any of the capital stock of any other corporation or any equity, profit sharing,
participation or other interest in any corporation, partnership, joint venture
or other entity.
(e) Intellectual Property. AZ Corp. does not own or use any
trademarks, tradenames, service marks, patents, copyrights or any applications
with respect thereto. AZ Corp. has no knowledge of any claim that, or inquiry as
to whether, any product, activity or operation of AZ Corp. infringes upon or
involves, or has resulted in the infringement of, any trademarks, tradenames,
service marks, patents, copyrights or other proprietary rights of any other
person, corporation or other entity; and no proceedings have been instituted,
are pending or are threatened with respect thereto.
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(f) Absence of Certain Changes or Events; No Undisclosed Material
Liabilities. Since the date of confirmation of the Plan, AZ Corp. has conducted
its business only in the ordinary course, and there has not been (A) any change,
destruction, damage, loss or event which has had or could reasonably be expected
to have, individually or in the aggregate, a AZ Corp. Material Adverse Effect;
(B) any declaration, setting aside or payment of any dividend or other
distribution in respect of shares of AZ Corp.' capital stock, or any repurchase,
redemption or other acquisition by AZ Corp. of any shares of its capital stock
or equity interests, as applicable; (C) any increase in the rate or terms of
compensation payable or to become payable by AZ Corp. to its directors, officers
or key employees, except increases occurring in the ordinary course of business
consistent with past practices or was required under any employment, severance
or termination agreements; (D) any entry into, or increase in the rate or terms
of, any bonus, insurance, severance, pension or other employee or retiree
benefit plan, payment or arrangement made to, for or with any such directors,
officers or employees, except increases occurring in the ordinary course of
business consistent with past practices or as was required under employment
agreements or employee or director benefit plans; (E) any entry into any
agreement, commitment or transaction by AZ Corp., or waiver, termination,
amendment or modification to any agreement, commitment or transaction, which is
material to AZ Corp. taken as a whole; (F) any material labor dispute involving
the employees of AZ Corp.; (G) any change by AZ Corp. in accounting methods,
principles or practices except as required or permitted by GAAP; (H) any
write-off or write-down of, or any determination to write-off or write-down, any
asset of AZ Corp. or any portion thereof; (I) any split, combination or
reclassification of any of AZ Corp.' capital stock or issuance or authorization
relating to the issuance of any other securities in respect of, in lieu of or in
substitution for shares of AZ Corp.' capital stock; (J) any amendment of any
material term of any outstanding security of AZ Corp.; (K) any loans, advances
or capital contributions to or investments in, any other person in existence on
the date hereof made by AZ Corp., other than to any direct or indirect
wholly-owned subsidiary; (L) any sale or transfer by AZ Corp. of any of the
assets of AZ Corp., cancellation of any material debts or claims or waiver of
any material rights by AZ Corp.; or (M) any agreements by AZ Corp. to (1) do any
of the things described in the preceding clauses (A) through (L) other than as
expressly contemplated or provided for herein or (2) take, whether in writing or
otherwise, any action which, if taken prior to the date of this Agreement, would
have made any representation or warranty of AZ Corp. in this Agreement untrue or
incorrect in any material respect.
(g) Employees. Except for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, AZ Corp.' sole
officer and director, AZ Corp. (i) has no employees, (ii) owes no compensation
of any kind, deferred or otherwise, to any current or previous employees, (iii)
has no written or oral employment agreements with any officer or director of AZ
Corp. (iv) is a party to or bound by any collective bargaining agreement. There
are no loans or other obligations payable or owing by AZ Corp. to any
stockholder, officer, director or employee of AZ Corp., nor are there any loans
or debts payable or owing by any of such persons to AZ Corp. or any guarantees
by AZ Corp. of any loan or obligation of any nature to which any such person is
a party.
(h) Employee Benefit Plans. AZ Corp. has no (a) non-qualified
deferred or incentive compensation or retirement plans or arrangements, (b)
qualified retirement plans or arrangements, (c) other employee compensation,
severance or termination pay or welfare benefit plans, programs or arrangements
or (d) any related trusts, insurance contracts or other funding arrangements
maintained, established or contributed to by AZ Corp. (collectively, "Employee
Benefit Plans"). AZ Corp. has no liability for a former Employee Benefit Plan or
severance liabilities.
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(i) Taxes. All Tax Returns for all periods ending on or before the
Closing Date that are or were required to be filed by, or with respect to, AZ
Corp., either separately or as a member of an affiliated group of corporations,
have been or will be filed on a timely basis in accordance with the laws,
regulations and administrative requirements of each Taxing Authority. All such
Tax Returns that have been filed on or before the Closing Date were, when filed,
and continue to be, true, correct and complete.
(j) Voting Requirements. Holders of issued and outstanding shares
of AZ Corp. Common Stock are not entitled to vote and otherwise approve this
Agreement, the Merger and any other matter or transaction contemplated by this
Agreement.
(k) Compliance with Applicable Laws. AZ Corp. has and after giving
effect to the transactions contemplated hereby will have in effect all federal,
state, local and foreign governmental approvals, authorizations, certificates,
filings, franchises, licenses, notices, permits and rights ("Permits") necessary
for it to own, lease or operate its properties and assets and to carry on its
business as now conducted, and to the knowledge of AZ Corp. there has occurred
no default under any such Permit, except for the lack of Permits and for
defaults under Permits which lack or default individually or in the aggregate
would not have a AZ Corp. Material Adverse Effect. To AZ Corp.' knowledge, AZ
Corp. is in compliance with, and has no liability or obligation under, all
applicable statutes, laws, ordinances, rules, orders and regulations of any
Governmental Entity, including any liability or obligation to undertake any
remedial action under Hazardous Substances Laws, except for instances of
non-compliance, liabilities or obligations, which individually or in the
aggregate would only have an immaterial effect.
(l) Insurance. AZ Corp. has no insurance policies in effect. AZ
Corp. has no outstanding insurance obligations.
(m) Brokers. No broker, investment banker, financial advisor or
other person, the fees and expenses of which will be paid by AZ Corp., is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of AZ Corp..
(n) Litigation, etc.. As of the date hereof, (i) there is no suit,
claim, action or proceeding (at law or in equity) pending or, to the knowledge
of AZ Corp., threatened against AZ Corp. (including, without limitation, any
product liability claims) before any court or governmental or regulatory
authority or body, and (ii) AZ Corp. is not subject to any outstanding order,
writ, judgment, injunction, order, decree or arbitration order that, in any such
case described in clauses (i) and (ii), (A) could reasonably be expected to
have, individually or in the aggregate, a AZ Corp. Material Adverse Effect or
(B) involves an allegation of criminal misconduct or a violation of the
Racketeer and Influenced Corrupt Practices Act, as amended. As of the date
hereof, there are no suits, actions, claims or proceedings pending or, to AZ
Corp.' knowledge, threatened, seeking to prevent, hinder, modify or challenge
the transactions contemplated by this Agreement.
(o) Contracts. AZ Corp. has no material contracts, leases,
arrangements or commitments (whether oral or written) or is a party to or bound
by or affected by any contract, lease, arrangement or commitment (whether oral
or written) relating to: (a) the employment of any person; (b) collective
bargaining with, or any representation of any employees by, any labor union or
association; (c) the acquisition of services, supplies, equipment or other
personal property; (d) the purchase or sale of real property; (e) distribution,
agency or construction; (f) lease of real or personal property as lessor or
lessee or sublessor or sublessee; (g) lending or advancing of funds; (h)
borrowing of funds or receipt of credit; (i) incurring any obligation or
liability; or (j) the sale of personal property.
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(p) Unlawful Payments and Contributions. To the knowledge of AZ
Corp., neither AZ Corp. nor any of its respective directors, officers or any of
its employees or agents has (i) used any AZ Corp. funds for any unlawful
contribution, endorsement, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to any person.
(q) Real Property. AZ Corp. neither owns nor leases any real
property.
(r) Anti-takeover Plan: State Takeover Statutes. AZ Corp. does not
have in effect any plan, scheme, device or arrangement, commonly or colloquially
known as a "poison pill" or "anti-takeover" plan or any similar plan, scheme,
device or arrangement. The Board of Directors of AZ Corp. has approved the
Merger and this Agreement. No other state takeover statute or similar statute or
regulation applies or purports to apply to the Merger, this Agreement or any of
the transactions contemplated by this Agreement.
(s) Solicitation. Neither AZ Corp., any of its officers,
directors, affiliates, agents, nor any other person acting on its behalf has
solicited, directly or indirectly, any person to enter into a merger or similar
business combination transaction with AZ Corp. by any form of general
solicitation, including, without limitation, any advertisement, article, notice
or other communication published in any newspaper, magazine or similar media or
broadcast over television or radio or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(t) Disclosure. The representations and warranties and statements
of fact made by AZ Corp. in this Agreement are, as applicable, accurate, correct
and complete and do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements and
information contained herein not false or misleading.
SECTION 4.2 Representations and Warranties of ▇▇▇▇▇▇ Corp.. ▇▇▇▇▇▇
Corp. represents and warrants to AZ Corp. as follows:
(a) Organization, Standing and Corporate Power. ▇▇▇▇▇▇ Corp. is a
corporation duly organized, validly existing and in good standing under the
jurisdiction in which it is incorporated, and has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business substantially as now conducted, except where the failure to do so would
not have, individually or in the aggregate, a ▇▇▇▇▇▇ Corp. Material Adverse
Effect. For purposes of this Agreement, the term "▇▇▇▇▇▇ Corp. Material Adverse
Effect" means any Material Adverse Effect with respect to ▇▇▇▇▇▇ Corp., taken as
a whole, or any change of effect that adversely, or is reasonably expected to
adversely, effect the ability of ▇▇▇▇▇▇ Corp. to consummate the transactions
contemplated by this Agreement in any material respect or materially impair or
delay Colley Corp.'s ability to perform its obligations hereunder.
(b) Authority; Noncontravention. The execution, delivery and
performance by ▇▇▇▇▇▇ Corp. of this Agreement and the consummation of the Merger
by ▇▇▇▇▇▇ Corp. has been duly authorized by all necessary corporate action on
the part of ▇▇▇▇▇▇ Corp.. This Agreement has been duly executed and delivered by
▇▇▇▇▇▇ Corp. and, assuming this Agreement constitutes the valid and binding
agreement of AZ Corp. , constitutes a valid and binding obligation of ▇▇▇▇▇▇
Corp., enforceable against such party in accordance with its terms, subject to
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applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies and to
general principles of equity. The execution and delivery of this Agreement do
not, and the consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement, will not (i) conflict with any
of the provisions of the charter or organizational documents of ▇▇▇▇▇▇ Corp.,
(ii) subject to the governmental filings and other matters referred to in the
following sentence, conflict with, result in a breach of or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of a
material benefit under, or require the consent of any person under, any
indenture, or other material agreement, permit, concession, franchise, license
or similar instrument or undertaking to which ▇▇▇▇▇▇ Corp. is a party or by
which ▇▇▇▇▇▇ Corp. or any of its assets is bound or affected, or (iii) subject
to the governmental filings and other matters referred to in the following
sentence, contravene any law, rule or regulation, or any order, writ, judgment,
injunction, decree, determination or award binding on or applicable to ▇▇▇▇▇▇
Corp. and currently in effect, which, in the case of clauses (ii) and (iii)
above, singly or in the aggregate, would have an ▇▇▇▇▇▇ Corp. Material Adverse
Effect. No consent, approval or authorization of, or declaration or filing with,
or notice to, any Governmental Entity which has not been received or made is
required by or with respect to ▇▇▇▇▇▇ Corp. in connection with the execution and
delivery of this Agreement by ▇▇▇▇▇▇ Corp. or the consummation by ▇▇▇▇▇▇ Corp.
of any of the transactions contemplated by this Agreement, except for (i) the
filing of the articles of merger with the Texas Secretary of State and (ii)
consents, approvals, authorizations, declarations, filings and notices that, if
not obtained or made, will not, individually or in the aggregate, result in an
▇▇▇▇▇▇ Corp. Material Adverse Effect.
(c) Capital Structure. The authorized capital stock of ▇▇▇▇▇▇
Corp. consists of 1,000,000 shares of ▇▇▇▇▇▇ Corp. Common Stock, $.01 par value.
All outstanding shares of capital stock of ▇▇▇▇▇▇ Corp. have been duly
authorized and validly issued, and are fully paid and nonassessable and not
subject to preemptive or similar rights. No bonds, debentures, notes or other
indebtedness of ▇▇▇▇▇▇ Corp. having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on which
the stockholders of ▇▇▇▇▇▇ Corp. may vote are issued or outstanding. Except for
this Agreement, ▇▇▇▇▇▇ Corp. does not have and, at or after the Effective Time
will not have, any outstanding option, warrant, call, subscription or other
right, agreement or commitment which either (i) obligates ▇▇▇▇▇▇ Corp. to issue,
sell or transfer, repurchase, redeem or otherwise acquire or vote any shares of
the capital stock of ▇▇▇▇▇▇ Corp., or (ii) restricts the voting, disposition or
transfer of shares of capital stock of ▇▇▇▇▇▇ Corp.. There are no outstanding
stock appreciation rights or similar derivative securities or rights of ▇▇▇▇▇▇
Corp..
(d) Subsidiaries. ▇▇▇▇▇▇ Corp. does not own, directly or
indirectly, any capital stock of any other corporation or any equity profit
sharing, participation of other interest in any corporation, partnership, joint
venture or other entity.
(e) No Brokers. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of ▇▇▇▇▇▇ Corp..
(f) Intellectual Property. ▇▇▇▇▇▇ Corp. does not own or use any
trademarks, tradenames, service marks, patents, copyrights or any applications
with respect thereto.
8
(g) Absence of Certain Changes or Events; No Undisclosed Material
Liabilities. Since the date of its inception, ▇▇▇▇▇▇ Corp. has conducted its
business only in the ordinary course, and there has not been any change,
destruction, damage, loss or event which has had or could reasonably be expected
to have, individually or in the aggregate, an ▇▇▇▇▇▇ Corp. Material Adverse
Effect.
(h) Employees. Except for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Corp. has no
other employees.
(i) Employee Benefit Plans. ▇▇▇▇▇▇ Corp. has no (a) non-qualified
deferred or incentive compensation or retirement plans or arrangements, (b)
qualified retirement plans or arrangements, (c) other employee compensation,
severance or termination pay or welfare benefit plans, programs or arrangements
or (d) any related trusts, insurance contracts or other funding arrangements
maintained, established or contributed to by ▇▇▇▇▇▇ Corp. (collectively, "▇▇▇▇▇▇
Corp. Employee Benefit Plans"). ▇▇▇▇▇▇ Corp. has no liability for a former
▇▇▇▇▇▇ Corp. Employee Benefit Plan or severance liabilities.
(j) Taxes All Tax Returns for all periods ending on or before the
Closing Date that are or were required to be filed by, or with respect to,
▇▇▇▇▇▇ Corp., either separately or as a member of an affiliated group of
corporations, have been or will be filed on a timely basis in accordance with
the laws, regulations and administrative requirements of each Taxing Authority.
All such Tax Returns that have been filed on or before the Closing Date were,
when filed, and continue to be, true, correct and complete.
(k) Voting Requirements. Holders of issued and outstanding shares
of capital stock or other securities of ▇▇▇▇▇▇ Corp. are entitled to vote or
otherwise approve this Agreement, the Merger or any other matter or transaction
contemplated by this Agreement.
(l) Compliance with Applicable Laws. ▇▇▇▇▇▇ Corp. has and after
giving effect to the transactions contemplated hereby will have in effect all
federal, state, local and foreign governmental approvals, authorizations,
certificates, filings, franchises, licenses, notices, permits and rights
("Permits") necessary for it to own, lease or operate its properties and assets
and to carry on its business as now conducted, and to the knowledge of ▇▇▇▇▇▇
Corp. there has occurred no default under any such Permit, except for the lack
of Permits and for defaults under Permits which lack or default individually or
in the aggregate would not have a ▇▇▇▇▇▇ Corp. Material Adverse Effect. To
▇▇▇▇▇▇ Corp.'s knowledge, ▇▇▇▇▇▇ Corp. is in compliance with, and have no
liability or obligation under, all applicable statutes, laws, ordinances, rules,
orders and regulations of any Governmental Entity, including any liability or
obligation to undertake any remedial action under Hazardous Substances Laws,
except for instances of non-compliance, liabilities or obligations, which
individually or in the aggregate would only have an immaterial effect.
(m) Insurance. ▇▇▇▇▇▇ Corp. has no insurance policies in place.
(n) Brokers. No broker, investment banker, financial advisor or
other person, the fees and expenses of which will be paid by ▇▇▇▇▇▇ Corp., is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of ▇▇▇▇▇▇ Corp..
(o) Litigation, etc.. As of the date hereof, (i) there is no suit,
claim, action or proceeding (at law or in equity) pending or, to the knowledge
of ▇▇▇▇▇▇ Corp., threatened against ▇▇▇▇▇▇ Corp. (including, without limitation,
any product liability claims) before any court or governmental or regulatory
authority or body, and (ii) ▇▇▇▇▇▇ Corp. is not subject to any outstanding
order, writ, judgment, injunction, order, decree or arbitration order that, in
any such case described in clauses (i) and (ii), (A) could reasonably be
expected to have, individually or in the aggregate, an ▇▇▇▇▇▇ Corp. Material
Adverse Effect or (B) involves an allegation of criminal misconduct or a
violation of the Racketeer and Influenced Corrupt Practices Act, as amended. As
of the date hereof, there are no suits, actions, claims or proceedings pending
or, to ▇▇▇▇▇▇ Corp.'s knowledge, threatened, seeking to prevent, hinder, modify
or challenge the transactions contemplated by this Agreement.
9
(p) Contracts. ▇▇▇▇▇▇ Corp. is not bound by any material
contracts, leases, arrangements or commitments (whether oral or written) or is a
party to or bound by or affected by any contract, lease, arrangement or
commitment (whether oral or written) relating to: (a) the employment of any
person; (b) collective bargaining with, or any representation of any employees
by, any labor union or association; (c) the acquisition of services, supplies,
equipment or other personal property; (d) the purchase or sale of real property;
(e) distribution, agency or construction; (f) lease of real or personal property
as lessor or lessee or sublessor or sublessee; (g) lending or advancing of
funds; (h) borrowing of funds or receipt of credit; (i) incurring any obligation
or liability; or (j) the sale of personal property.
(q) Unlawful Payments and Contributions. To the knowledge of
▇▇▇▇▇▇ Corp., neither ▇▇▇▇▇▇ Corp. nor any of its directors, officers or any of
their respective employees or agents has (i) used any ▇▇▇▇▇▇ Corp. funds for any
unlawful contribution, endorsement, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee;
(iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any person.
(r) Real Property. ▇▇▇▇▇▇ Corp. neither owns nor leases any real
property.
(s) Anti-takeover Plan: State Takeover Statutes. ▇▇▇▇▇▇ Corp. does
not have in effect any plan, scheme, device or arrangement, commonly or
colloquially known as a "poison pill" or "anti-takeover" plan or any similar
plan, scheme, device or arrangement. The Board of Directors of ▇▇▇▇▇▇ Corp. has
approved the Merger and this Agreement. No other state takeover statute or
similar statute or regulation applies or purports to apply to the Merger, this
Agreement or any of the transactions contemplated by this Agreement.
(t) Solicitation. Neither ▇▇▇▇▇▇ Corp., any of its officers,
directors, affiliates, agents, nor any other person acting on its behalf has
solicited, directly or indirectly, any person to enter into a merger or similar
business combination transaction with ▇▇▇▇▇▇ Corp. by any form of general
solicitation, including, without limitation, any advertisement, article, notice
or other communication published in any newspaper, magazine or similar media or
broadcast over television or radio or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(u) Disclosure. The representations and warranties and statements
of fact made by ▇▇▇▇▇▇ Corp. in this Agreement are, as applicable, accurate,
correct and complete and do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements and
information contained herein not false or misleading.
10
ARTICLE V
COVENANTS
SECTION 5.1 Other Actions. AZ Corp. shall not take any action that
would, or that could reasonably be expected to, result in (i) any of the
representations and warranties set forth in Section 4.1 of this Agreement that
are qualified as to materiality becoming untrue, (ii) any of such
representations and warranties that are not so qualified becoming untrue in any
material respect, or (iii) any of the conditions of the Merger set forth in
Article VII not being satisfied. ▇▇▇▇▇▇ Corp. shall not take any action that
would, or that could reasonably be expected to, result in (i) any of the
representations and warranties set forth in Section 4.2 of this Agreement that
are qualified as to materiality becoming untrue, (ii) any of such
representations and warranties that are not so qualified becoming untrue in any
material respect, or (iii) any of the conditions of the Merger set forth in
Article VII not being satisfied.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6. 1 Access to Information; Confidentiality. Each of the
parties hereto shall afford the other party, and such other party's officers,
employees, counsel, financial advisors and other representatives reasonable
access during normal business hours during the period prior to the Effective
Time to all its owned and leased properties (including as required to perform
any environmental studies or reviews of such properties), books, contracts,
commitments, tax returns, personnel and records and, during such period, furnish
as promptly as practicable to the requesting party, its counsel, financial
advisors and other representatives, such information concerning its business,
properties, financial condition, operations and personnel as it may from time to
time reasonably request. Any such access or investigation shall not affect the
representations or warranties made by such party contained in this Agreement.
Except as required by law, each of the parties shall hold, and will cause their
respective directors, officers, partners, employees, accountants, counsel,
financial advisors and other representatives and affiliates to hold, any
non-public information obtained from the other party in confidence.
SECTION 6.2 Reasonable Best Efforts. Upon the terms and subject to the
conditions and other agreements set forth in this Agreement, each of the parties
agrees to use its reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the Merger and
the other transactions contemplated by this Agreement, including the
satisfaction of the respective conditions set forth in Article VII.
SECTION 6.3 Indemnification. (a) AZ Corp. shall, and from and after the
Effective Time, indemnify, defend and hold harmless each person who is now, or
has been at any time prior to the date hereof or who becomes prior to the
Effective Time, an officer or director of either ▇▇▇▇▇▇ Corp. or AZ Corp. (the
"Indemnified Parties") against all losses, claims, damages, costs, expenses
(including reasonable attorneys' fees and expenses), liabilities or judgments or
amounts that are paid in settlement with the approval of the indemnifying party
of or in connection with any threatened or actual claim, action, suit,
proceeding or investigation based on or arising out of the fact that such person
is or was a director or officer of ▇▇▇▇▇▇ Corp. or AZ Corp. whether pertaining
to any matter existing or occurring at or prior to the Effective Time and
whether asserted or claimed prior to, or at or after, the Effective Time
("Indemnified Liabilities"), including all Indemnified Liabilities based on, or
arising out of, or pertaining to this Agreement or the transactions contemplated
hereby, in each case, to the full extent a corporation is permitted under the
DGCL , respectively, to indemnify directors or officers.
11
(b) Without limiting the foregoing, in the event any such claim,
action, suit, proceeding or investigation is brought against any Indemnified
Parties (whether arising before or after the Effective Time), (i) the
Indemnified Parties may retain counsel satisfactory to them and AZ Corp. shall
pay all fees and expenses of such counsel for the Indemnified Parties promptly
as statements therefore are received; and (ii) AZ Corp. shall use all reasonable
efforts to assist in the vigorous defense of any such matter, provided that AZ
Corp. shall not be liable for any settlement effected without its prior written
consent. Any Indemnified Party wishing to claim indemnification under this
Section 6.3, upon learning of any such claim, action, suit, proceeding or
investigation, shall notify AZ Corp. (but the failure so to notify shall not
relieve a party from any liability which it may have under this Section 6.3
except to the extent such failure prejudices such party), and shall deliver to
AZ Corp. the undertaking contemplated by the applicable Sections of the DGCL .
The Indemnified Parties as a group may retain only one law firm to represent
them with respect to each such matter unless there is, under applicable
standards of professional conduct, a conflict on any significant issue between
the positions of any two or more Indemnified Parties. ▇▇▇▇▇▇ Corp. and AZ Corp.
agree that all rights to indemnification, including provisions relating to
advances of expenses incurred in defense of any action or suit, existing in
favor of the Indemnified Parties with respect to matters occurring through the
Effective Time, shall survive the Merger and shall continue in full force and
effect for a period of not less than four years from the Effective Time;
provided, however, that all rights to indemnification in respect of any
Indemnified Liabilities asserted or made within such period shall continue until
the disposition of such Indemnified Liabilities.
(c) The provisions of this Section 6.3 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and his or her personal representatives and shall be binding upon all
successors and assigns of AZ Corp. and ▇▇▇▇▇▇ Corp..
SECTION 6.4 Public Announcements. AZ Corp. on the one hand, and ▇▇▇▇▇▇
Corp., on the other hand, will consult with each other before issuing, and
provide each other the opportunity to review and comment upon, any press release
or other public statements with respect to the transactions contemplated by this
Agreement, including the Merger, and shall not issue any such press release or
make any such public statement prior to such consultation, except as may be
required by applicable law, court process or by obligations pursuant to any
listing agreement with any national securities exchange or automated quotation
system.
SECTION 6.5 Consents, Approvals and Filings. (a) ▇▇▇▇▇▇ Corp., on one
hand, and AZ Corp., on the other hand, will make all necessary filings, as soon
as practicable, in order to facilitate prompt consummation of the Merger and the
other transactions contemplated by this Agreement. In addition, ▇▇▇▇▇▇ Corp. and
AZ Corp. will each use their reasonable best efforts, and will cooperate fully
with each other (i) to comply as promptly as practicable with all governmental
requirements applicable to the Merger and the other transactions contemplated by
this Agreement; and (ii) to obtain as promptly as practicable all necessary
permits, orders or other consents of Governmental Entities and consents of all
third parties necessary for the consummation of the Merger and the other
transactions contemplated by this Agreement. Each of ▇▇▇▇▇▇ Corp. and AZ Corp.
shall use reasonable efforts to provide such information and communications to
Governmental Entities as such Governmental Entities may reasonably request.
(b) Each of the parties shall provide to the other party copies of
all applications in advance of filing or submission of such applications to
Governmental Entities in connection with this Agreement, and copies of all
correspondence with such Governmental Entities, and shall keep all the parties
timely apprized of the status of the foregoing.
12
SECTION 6.6 Resignations. On the Closing Date, AZ Corp. shall cause the
directors and officers of AZ Corp. to submit their resignations from such
positions, effective as of the Effective Time.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 Conditions to Obligations of Each Party to Effect the
Merger. The respective obligations of each party hereto to effect the Closing
shall be subject to the fulfillment on or prior to the Closing Date of the
condition that no order shall have been entered and remained in effect in any
action or proceeding before any foreign, federal or state court or governmental
agency or other foreign, federal or state regulatory or administrative agency or
commission that would prevent or make illegal the consummation of the
transactions contemplated hereby.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Effective Time, in any one of the following circumstances:
(i) By mutual written consent of AZ Corp. and ▇▇▇▇▇▇
Corp..
(ii) By AZ Corp. or ▇▇▇▇▇▇ Corp., if (x) any Statute, rule
or regulation shall have been promulgated by any Governmental
Entity prohibiting or restricting the Merger or (y) any
federal or state court of competent jurisdiction or other
Governmental Entity shall have issued an order, decree or
ruling, or taken any other action permanently restraining,
enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and
non-appealable; provided, that a party may not terminate this
Agreement pursuant to this clause (iii) if it has not complied
with its obligations under Section 6.2.
SECTION 8.2 Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 8.1 hereof, this Agreement
(except for the provisions of Sections 6.4, this Section 8.2, and Article IX
shall forthwith become void and have no effect, without any liability on the
part of any party hereto or its directors, officers or stockholders; provided,
however, that nothing in this Section 8.2 shall relieve any party to this
Agreement or liability for any willful or intentional breach of this Agreement.
SECTION 8.3 Amendment. Subject to the applicable provisions of the
DGCL, at any time prior to the Effective Time, the parties hereto may modify or
amend this Agreement, by written agreement executed and delivered by duly
authorized officers of the respective parties. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties.
SECTION 8.4 Extension; Waiver. At any time prior to the Effective Time,
the parties may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties of the other parties contained in this
Agreement or in any document delivered pursuant to this Agreement or (c) subject
to Section 8.3, waive compliance with any of the agreements or conditions of the
other parties contained in this Agreement. Any agreement on the part of a party
to any such extension or wavier shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of any party
to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
13
SECTION 8.5 Procedure for Termination, Amendment, Extension or Waiver.
A termination of this Agreement pursuant to Section 8.1 hereof, an amendment of
this Agreement pursuant to Section 8.3 hereof or an extension or waiver pursuant
to Section 8.4 hereof shall, in order to be effective, require by AZ Corp. or
▇▇▇▇▇▇ Corp., as the case may be, action by its Board of Directors or the duly
authorized committee or designee of its Board of Directors.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 Nonsurvival of Representations and Warranties. Except as
otherwise contemplated herein, none of the representations and warranties in
this Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Effective Time. This Section 9.1 shall not limit any covenant or
agreement of the parties, which by its terms contemplates performance after the
Effective Time.
SECTION 9.2 Fees and Expenses. Each party hereto shall pay its own
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
SECTION 9.3 Definitions. For purposes of this Agreement, and except as
otherwise defined in this Agreement:
(a) "Affiliate" of any person means another person that directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such first person;
(b) "Business Day" means any day other than Saturday, Sunday or
any other day on which banks in the City of Los Angeles, Texas are required or
permitted to close;
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended;
(d) "Income Taxes" means (i) foreign, federal, state or local
income or franchise taxes or other taxes imposed on or with respect to net
income or capital, together with any interest or penalties or additions to tax
imposed with respect thereto, and (ii) any obligations under any agreements or
arrangements with respect to any taxes described in clause (i) above.
(e) "Income Tax Returns" means foreign, federal, state or local
Tax Returns required to be filed with any Taxing Authority that include any of
AZ Corp. or the Subsidiaries that pertain to Income Taxes;
14
(f) "Liability" means, as to any Person, all debts, liabilities
and obligations, direct, indirect, absolute or contingent of such Person,
whether accrued, vested or otherwise, whether known or unknown and whether or
not actually reflected, or required in accordance with GAAP to be reflected, in
such Person's balance sheet.
(g) "Liens" means, collectively, all material pledges, claims,
liens, charges, mortgages, conditional sale or title retention agreements,
hypothecations, collateral assignments, security interests, easements and other
encumbrances of any kind or nature whatsoever;
(h) "Material Adverse Effect" with respect any person means an
event that has had or would reasonably be expected to have a material adverse
effect on the business, financial condition or results of operations of such
person and its Subsidiaries taken as a whole;
(i) "Person" means an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity;
(j) "Plan" means AZ Corp.'s Amended Joint Plan of Reorganization
dated as of November 15, 1999, as modified and confirmed by the United States
Bankruptcy Court, Central District of California (Los Angeles Division) - Case
No. LA-97-46094-ER.
(k) "Tax" or "Taxes" means (i) any and all taxes (whether federal,
state, local or foreign), including, without limitation, gross receipts,
profits, sales, use, occupation, value added, ad valorem, transfer, franchise,
withholding, payroll, employment, excise, or property taxes, together with any
interest, penalties or additions to tax imposed with respect thereto and (ii)
any obligations under any agreements or arrangements with respect to any taxes
described in clause (i) above;
(l) "Taxing Authority" means any governmental authority, domestic
or foreign, having jurisdiction over the assessment, determination, collection,
or other imposition of any Tax; and
(m) "Tax Returns" means returns, reports and forms required to be
filed with any Taxing Authority.
SECTION 9.4 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to AZ Corp.:
AZ Corp. Acquisition Corp.
c/o Halter Financial Group, Inc.
One Panorama Center
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ Corp.:
▇▇▇▇▇▇ Corp., Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
15
SECTION 9.5 Interpretation. When a reference is made in this Agreement
to a Section or Schedule, such reference shall be to a Section of, or a Schedule
to, this Agreement unless otherwise indicated. The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation".
SECTION 9.6 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.
SECTION 9.7 Entire Agreement: Third-Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement. This Agreement is not intended to confer upon
any person other than the parties hereto and the third party beneficiaries
referred to in the following sentence, any rights or remedies. The parties
hereto expressly intend the provisions of Section 6.3 to confer a benefit upon
and be enforceable by, as third party beneficiaries of this Agreement, the third
persons referred to in, or intended to be benefited by, such provisions.
SECTION 9.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
SECTION 9.9 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties, and any such assignment that is not
consented to shall be null and void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 9.10 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware, this being in addition to any other remedy to
which they are entitled at law or in equity.
SECTION 9.11 Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party, such invalidity,
illegality or unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
herein.
[Signature page follows]
16
IN WITNESS WHEREOF, AZ Corp. and ▇▇▇▇▇▇ Corp. have caused this
Agreement to be signed in multiple counterparts by their respective officers
thereunto duly authorized, all as of the date first written above.
AZ ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
17
