AGREEMENT AND PLAN OF REORGANIZATION
Agreement and Plan of Reorganization ("Agreement") between NEWCORP-ONE,
INC. a Nevada corporation ("Issuer"), and Xxxxxxxx X. Xxxxx, Xx., Xxxxxx X.
XxXxxxxx, Vision Finance and Management and Xxxxx Xxxxxx ("Shareholders"), being
the owners of record of all of the issued and outstanding stock of Voxcom
Systems, Inc., a Delaware corporation ("Company").
WHEREAS, Issuer wishes to acquire and the Shareholders wish to transfer
all of the issued and outstanding stock of the Company in a transaction intended
to qualify as a reorganization within the meaning of Section 368(a)(1)(B) of the
Internal Revenue Code of l986, as amended.
NOW, THEREFORE, Issuer and the Shareholders adopt this plan of
reorganization and agree as follows:
SECTION 1. EXCHANGE OF STOCK
1.01 Number of Shares. The Shareholders agree to transfer to Issuer at
the Closing an aggregate of 100,000 shares of common stock of the Company, in
exchange for an aggregate of 4,000,000 post-split shares of voting common stock
of Issuer, $.0001 par value per share, and 4,000,000 post-split Class A Warrants
and Class B Warrants, all to be issued at the Closing to the Shareholders in
proportion to their ownership of shares of the Company (the "Issuer Shares").
1.02 Delivery of Certificates by Shareholders, The transfer of Company
shares by the Shareholders shall be effected by the delivery to Issuer at the
Closing of certificates representing the transferred shares endorsed in blank or
accompanied by stock powers executed in blank, affixed with all necessary
transfer tax and other revenue stamps, acquired at the Shareholders' expense.
1.03 Further Assurances. At the Closing and from time to time
thereafter, the parties shall execute such additional instruments and take such
other actions as either may request in order more effectively to sell, transfer
and assign the transferred stock of the Company to Issuer and to confirm
Issuer's title thereto for the Shareholders and to acquire the Issuer Shares.
SECTION 2. CLOSING
2.01 Contemporaneous Closing. The Closing contemplated by Section 1.01
shall be held at the offices of Glast, Xxxxxxxx & Xxxxxx, P.C., counsel to the
Shareholders, contemporaneously with the execution of this Agreement.
2.02 Actions. At the Closing, the parties shall execute and deliver the
documents and take all other actions contemplated by this Agreement.
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SECTION 3. REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS
The Shareholders severally, but not jointly, represent and warrant to
the Issuer as follows:
3.01 Corporate Status. Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is
licensed or qualified as a foreign corporation in all locations in which the
nature of its business or the character or ownership of its properties makes
such licensing or qualification necessary.
3.0 Capitalization. The authorized capital stock of the Company
consists of 1,000,000 authorized shares of Common Stock, par value $0.01 per
share, of which 100,000 shares are issued and outstanding, all fully paid and
nonassessable.
3.03 Financial Statements. The unaudited financial statements of
Company furnished to Issuer consisting of balance sheets as of December 31,
1996, and related statements of income for the twelve months then ended, are
materially correct and fairly present the financial condition of Company and its
predecessor as of the dates and for the periods presented, and except as noted
such statements were prepared in accordance with generally accepted accounting
principles consistently applied.
3.04 Undisclosed Liabilities. Company has no liabilities of any nature
except to the extent reflected or reserved against in Company's Balance Sheet,
whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due, except as may
have been incurred in the ordinary course of business since the date of the
Financial Statements.
3.05 Interim Changes. Between the date of the Financial Statements and
the date of this Agreement, there have not been, except as set forth in the
Disclosure Schedule (1) any changes in Company's financial condition, assets,
liabilities or business which, in the aggregate, have been materially adverse;
(2) any damage, destruction or loss of or to Company's property, whether or not
covered by insurance; (3) any declaration or payment of any dividends or other
distribution in respect of Company's capital stock, or any direct or indirect
redemption, purchase or other acquisition or any such stock; or (4) any increase
paid or agreed to in the compensation, retirement benefits or other commitments
to employees.
3.06 Title to Property. Company has good and merchantable title to all
properties and assets, real and personal, reflected in Company's latest Balance
Sheet, except as since sold or otherwise disposed of in the ordinary course of
business, and Company's properties and assets are subject to no mortgage,
pledge, lien or encumbrance, except for liens shown therein.
3.07 Litigation. There is no litigation or proceeding pending, or
to Shareholders' knowledge threatened, against or relating to Company, its
properties or business, except as set forth
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in the Disclosure Schedule.
3.08 Title to Shares. The Shareholders are the owners, free and clear
of any liens and encumbrances, of the number of Company shares, which the
Shareholders have contracted to exchange.
SECTION 4. REPRESENTATIONS, WARRANTIES
AND COVENANTS OF ISSUER
Issuer represents and warrants to, and covenants with, the Shareholders
as follows:
4.01 Corporate Status. Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and is
licensed or qualified as a foreign corporation in all states in which the nature
of its business or the character or ownership of its properties makes such
licensing or qualification necessary.
4.02 Capitalization. The authorized capital stock of Issuer following
amendment of its Articles of Incorporation consists of 100,000,000 shares of
capital stock, having a par value of $.0001 per share, of which 5,000,000 shares
are issued and outstanding, all fully paid and non assessable, following the
issuance thereof at the Closing pursuant to the Order Confirming Debtor's Second
Amended Plan of Reorganization (as modified) in Case No. LA 89-15370-KL in the
United States Bankruptcy Court, Central District of California (the "Order") and
after declaration of a one- for-four reverse split of such shares.
4.03 Financial Statement. As of the date of the Closing, Issuer
represents that the Financial Statements of Issuer hereto attached as Exhibit A,
are accurate in accordance with generally accepted accounting principles (the
"Issuer Financial Statements").
4.04 Undisclosed Liabilities. Issuer has no liabilities of any nature
except to the extent reflected in the Issuer Financial Statements. Issuer has
not conducted any business whatsoever since the date of its incorporation.
4.05 Interim Changes. Between the date of the Issuer Financial
Statements, and the date of this Agreement, there have not been, except as set
forth in the Disclosure Schedule (1) any changes in Issuer's financial
condition, assets, liabilities or business which, in the aggregate, have been
materially adverse; (2) any damage, destruction or loss of or to Issuer's
property, whether or not covered by insurance; (3) any declaration or payment of
any dividends or other distribution in respect of Issuer's capital stock, or any
direct or indirect redemption, purchase or other acquisition of any such stock;
or (4) any increase paid or agreed to in the compensation, retirement benefits
or other commitments to employees.
4.06 Title to Property. Issuer has good and merchantable title to all
properties and assets, real and personal, reflected in Issuer's latest Balance
Sheet, if any, except as since sold or otherwise
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disposed of in the ordinary course of business, and Issuer's properties and
assets are subject to no mortgage, pledge, lien or encumbrance, except for liens
shown therein.
4.07 Litigation. There is no litigation or proceeding pending, or to
Issuer's knowledge threatened, against or relating to Issuer, its properties or
business, except as set forth in the Disclosure Schedule.
4.08 Investment Intent. Issuer is acquiring the Company shares to be
transferred to it under this Agreement for investment and not with a view to the
sale or distribution thereof, and Issuer has no commitment or present intention
to liquidate Company or to sell or otherwise dispose of its stock.
4.09 Corporate Authority. Issuer has full corporate power and authority
to enter into this Agreement and to carry out its obligations hereunder and will
deliver to the Shareholders at the Closing a certified copy of resolutions of
its Board of Directors authorizing execution of this Agreement by its officers
and part performance thereunder.
4.10 Due Authorization. Execution of this Agreement and performance by
Issuer hereunder has been duly authorized by all requisite corporate and
shareholder action on the part of Issuer, and this Agreement constitutes a valid
and binding obligation of Issuer. Performance hereunder will not violate any
provision of Issuer's Articles of Incorporation, Bylaws, agreements, mortgages,
agreements with third parties or other commitments.
4.11 Court Authorization. Issuer will furnish a legal opinion to such
an extent that this Agreement and the transactions hereby are within the
disclosure document previously presented to the Bankruptcy Court, are approved
by the Bankruptcy Court pursuant to the Order, and that no further approval of
the Bankruptcy Court is needed.
SECTION 5. CONTEMPORANEOUS TRANSACTIONS
The following transactions shall have taken place at or prior to the
Closing and shall be conditions precedent to the obligation of any party to
close this Agreement.
5.01 Articles of Incorporation and Bylaws. Issuer shall have amended
its Articles of Incorporation in the form attached hereto as Exhibit A, and
shall have filed such amendment of record with the Secretary of State of Nevada.
Issuer shall have adopted new Bylaws in the form attached hereto as Exhibit B.
5.02 Issuances of Stock. Issuer shall have declared a one-for-four
reverse split of its Common Stock and distributed 1,000,000 shares of its common
stock and 1,000,000 Class A Warrants, as follows:
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Common Class A
Shareholder Shares Warrants
----------- ------ --------
Xxxxxx creditors in Plan Pool 82,500 82,500
Certificate of indebtedness holders 125,000 125,000
Xxxxxx shareholders 17,500 17,500
Administrative Claims 25,000 25,000
C. D. Financial, Inc. 250,000 250,000
Texas Equity, Inc. 250,000 250,000
JANDE International Holdings, 250,000 250,000
LLC
5.03 Market Makers. Issuer and the Company shall have arranged for at
least two member firms of the National Association of Securities Dealers, Inc.
("NASD") to act as market makers for the Issuer Shares and the Warrants, and
shall have supplied such market makers with the information required by SEC Rule
15c2-11.
5.04 Transfer Agent. Issuer shall have contracted with OTR/Oxford
Transfer & Registrar Agency, Inc. to serve as the transfer agent for the Issuer
Shares and Warrants after the Closing.
5.05 Certificates. Issuer and Company shall have prepared certificates
representing the Issuer Shares and Warrants in a form that complies with all
rules of the NASD, the Securities and Exchange Commission, and the State of
Nevada. The Company's counsel shall obtain CUSIP numbers for the Issuer Shares
and Warrants.
5.06 Resignations. All directors of Issuer except Xxxxxx Xxxxx shall
resign prior to the Closing. Xxxxxx Xxxxx shall act as director to elect the
Shareholders as directors of the Issuer, whereupon he shall resign as a
director. All officers of the Issuer shall resign at the Closing.
5.07 Lock-ups. C. D. Financial, Inc., Texas Equity, Inc. and JANDE
International Holdings, Inc. shall execute letters in the form of Exhibit C
attached hereto agreeing to certain restrictions on the right to sell or dispose
of any securities of the Issuer and certain other matters.
5.08 Consulting Agreement. Issuer shall execute and deliver that
certain Independent Consulting Agreement in the form attached hereto as Exhibit
D.
5.09 AmeraPress, Inc. Issuer shall have acquired by purchase all of the
common stock of AmeraPress, Inc., a Nevada corporation and successor to Voxcom
Sales, LLC, pursuant to the terms of the Stock Purchase Agreement attached
hereto as Exhibit E.
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SECTION 6. INDEMNIFICATION
6.01 Indemnification of Issuer. The Shareholders severally (and not
jointly) agree to indemnify Issuer against any loss, damage or expense
(including reasonable attorneys' fees) suffered by Issuer from (1) any breach by
the Shareholders of this Agreement; or (2) any inaccuracy in or breach of any of
the representations, warranties or covenants by the Shareholders herein;
provided, however that (a) Issuer shall be entitled to assert rights of
indemnification hereunder only if and to the extent that it suffers losses,
damages and expenses (including reasonable attorneys' fees) exceeding $50,000 in
the aggregate; and (b) Issuer shall give notice of any claims hereunder within
the twenty-four (24) month period beginning on the date of the Closing. No loss,
damage or expense shall be deemed to have been sustained by Issuer to the extent
of insurance proceeds paid to, or tax benefits realizable by, Issuer or Company
as a result of the event giving rise to such right to indemnification.
6.02 Indemnification of Shareholders. Issuer agrees to Indemnify the
Shareholders against any loss damage or expense (including reasonable attorneys'
fees) suffered by any of the Shareholders from (1) any breach by Issuer of this
Agreement; or (2) any inaccuracy in or breach of any of Issuer's
representations, warranties or covenants herein.
6.03 Defense of Claims. Upon obtaining knowledge thereof, the
indemnified party shall promptly notify the indemnifying party of any claim
which has given or could give rise to a right of indemnification under this
Agreement If the right of indemnification relates to a claim asserted by a third
party against the indemnified party, the indemnifying party shall have the right
to employ counsel acceptable to the indemnified party to cooperate in the
defense of any such claim. So long as the indemnifying party is defending any
such claim in good faith, the indemnified party will not settle such claim. If
the indemnifying party does not elect to defend any such claim, the indemnified
party shall have no obligation to do so.
SECTION 7. GENERAL PROVISIONS
7.01 Further Assurances. At any time, and from time to time, after the
Effective Date, each Company will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
7.02 Waiver. Any failure on the party of either party hereto to comply
with any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to who such compliance is owed.
7.03 Brokers. Each party represents to the other party that no broker
or finder has acted for it in connection with this Agreement, and agrees to
indemnify and hold harmless the other party against any fee, loss or expense
arising out of claims by brokers or finders employed or alleged to have been
employed by it.
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7.04 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or sent
by prepaid first-class registered or certified mail, return receipt requested,
as follows:
To:
NEWCORP-ONE
00000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX. 00000
To Shareholders:
c/o Xxxxxxxx X. Xxxxx, Xx.
00000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxxxx 00000
7.05 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
7.06 Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.07 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Nevada.
7.08 Assignment. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
7.09 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7.10 Disclosure Schedule. The Disclosure Schedule shall be attached
hereto prior to execution and shall contain any matter for which information may
be called for by any Section of this Agreement in order to clarify, amend or
render accurate such information.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date first above written.
NEWCORP ONE, INC.
By:/s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx, President
/s/ Xxxxxxxx X. Xxxxx, Xx.
-----------------------------
Xxxxxxxx X. Xxxxx, Xx.
/s/ Xxxxxx X. XxXxxxxx
-----------------------------
Xxxxxx X. XxXxxxxx
/s/ Xxxxx Xxxxxx
-----------------------------
Xxxxx Xxxxxx
VISION FINANCE AND MANAGEMENT
By:/s/ Xxxxxx X. XxXxxxxx
--------------------------
Xxxxxx X. XxXxxxxx, Agent
8
EXHIBIT A IS SET FORTH
IN EXHIBIT 3.01
EXHIBIT B IS SET FORTH
IN EXHIBIT 3.02
9
EXHIBIT C
June 11, 1997
Voxcom Holdings, Inc.
00000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Pursuant to the terms of the Agreement and Plan of Reorganization,
dated the date hereof (the "Agreement"), by and among Voxcom Holdings, Inc.,
f/k/a Newcorp-One, Inc., a Nevada corporation ("Voxcom") and Xxxxxxxx X. Xxxxx,
Xx., Xxxxx Xxxxxx and Xxxxxx X. XxXxxxxx (the "Shareholders"), the Shareholders
will acquire control of Voxcom and contribute an operating business as
contemplated by the Order Confirming Debtor's Second Amended Plan of
Reorganization (as modified) in Case No. LA 89-15370-KL in the United States
Bankruptcy Court, Central District of California (the "Order"). Pursuant to the
Order and the Agreement, the undersigned is entitled to receive 1,000,000 shares
of unrestricted common stock, 1,000,000 Class A Warrants and 1,000,000 Class B
Warrants of Voxcom (the "Shares") representing 5% of shares outstanding
following the issuance to the Shareholders and others.
I represent and warrant to, and covenant with, Voxcom as follows:
A. I shall not make any sale, transfer or other disposition of
any Shares issued to me in violation of the Securities Act of
1933 (the "Act") or the Rules and Regulations under the Act.
B. I have no present intention to sell or dispose of any of the
Shares.
C. I agree that, for a period of one year from the date hereof, I
will not offer, sell, transfer or convey any of the Shares,
whether in the open market or otherwise.
D. My Shares shall be callable, and I hereby grant to Voxcom the
right and option to purchase such shares for a price of $.0001
per share, in the event the issuance of Shares to the
Shareholders of Voxcom fails to comply with the Order or with
Section 1145 of the U.S. Bankruptcy Code (11 U.S.C. ss.1145).
10
Prior to any transfer of any of the Shares, I will give notice to
Voxcom of my intention to effect such offer, sale or transfer, describing the
proposed transaction in sufficient detail to enable Voxcom and its counsel to
determine that the proposed transaction will not violate the Act.
Sincerely,
----------------------------
AGREED AND ACKNOWLEDGED:
VOXCOM HOLDINGS, INC.
By:
Name:
Title:
11
INDEPENDENT CONSULTING AGREEMENT
--------------------------------
THIS INDEPENDENT CONSULTING AGREEMENT (the "Agreement") is made and
entered into as of this _____ day of ___________ , 1997, by and between Voxcom
Holdings, Inc. a Nevada corporation formerly known as Newcorp One, Inc. (the
"Company") and B. D. Brooke & Company, a Nevada corporation ("BDB") and made
with respect to the following facts:
(A) BDB is a Nevada corporation and is not directly regulated by
any Regulatory or Self- Regulatory agency and its business
includes providing financial and other advice to publicly held
companies.
(B) The Company requires such services as part of its business.
NOW, THEREFORE, in consideration of the promises and mutual promises
herein contained, the parties hereto agree as follows:
1. INDEPENDENT CONSULTANT: The Company hereby retains BDB as an
independent consultant to provide financial and other business advice to the
company. In providing the services hereunder, BDB may introduce the Company to
investors, lenders, and Broker/Dealers both private and institutional. The
Company shall maintain the confidentiality of such persons or entities and shall
not contact same without the written consent of BDB, BDB may provide similar and
other services to other companies and may receive compensation from the other
Parties involved in the providing of financing , and/or other services to the
Company.
2. INFORMATION REGARDING THE COMPANY: In order for BDB to perform
under this Agreement, the Company shall from time to time be required to
complete certain forms, submit information and deliver documents to BDB
including substantial financial and business information regarding the Company
(the "Information"). The failure of the Company to accurately and completely
deliver all requested Information to BDB within three (3) weeks of the request
therefore made by BDB, unless otherwise agreed to in writing, shall constitute a
breach of this Agreement by the Company upon which BDB may, in its sole
discretion, stop providing services hereunder, discontinue work on the Project
or terminate this Agreement.
3. CONFIDENTIALITY: All Information that the Company deems
confidential shall be clearly labeled as such prior to delivery to BDB. BDB
shall maintain the confidentially of all such labeled information except when
required by law or if such Information is available from another source not
required to maintain the confidentiality of the Information. This Section 3
shall survive this Agreement.
4. CONSIDERATION: In consideration for the services provided by
BDB to the Company hereunder, the Company shall pay the total of $40,000.00. The
consideration shall be paid
12
$20,000.00 immediately upon acceptance of this agreement, and $20,000.00 paid
upon completion, which shall be interpreted as the date in which a definitive
agreement is closed by and between the Company and Xxxxxxxx X. Xxxxx, Xx.,
Xxxxxx X. XxXxxxxx, and Xxxxx Xxxxxx. Such payments then due shall be proceeded
by an invoice from BDB which shall be marked payable upon receipt.
(a) Upon the completion of the proposed merger by and between The
Company and Issuer, the resulting merged Company may extend this contract and
elect to pay BDB a sum that shall be negotiated at that time, but shall be no
lower than $180.00 per hour plus expenses.
(b) The failure of the Company to accurately comply with this section 4
and subsection 4(a), unless otherwise agreed to in writing, shall constitute a
breach of this Agreement by the Company, upon which BDB may, in its sole
discretion, stop providing services hereunder, and terminate this Agreement.
Additionally, BDB shall be reimbursed by the Company for all reasonable
necessary out-of pocket expenses incurred by BDB in connection with the
performance of its obligations hereunder as provided in Section 8 hereof. The
fees payable hereunder are non-refundable.
5. EXCLUSIVITY: The Company shall have the non-exclusive right to
employ BDB as a independent consultant to it. If at any time during the term of
this Agreement. or within six months after its termination, the Company enters
into a contract for the financing or other services, if any, from sources
introduced to the Company by BDB, BDB shall be entitled to all of the
consideration provided in Section 4 above.
6. TERM: The term of this Agreement shall commence on the date hereof
and shall continue, for six months (6) from the date hereto (the "Period") with
mutual six months (6) extension thereof, unless terminated earlier by BDB
pursuant to Section 2 or Section 4 hereof.
7. INDEMNIFICATION. The Company shall indemnify, defend and hold
harmless BDB and all of its Directors, shareholders, employees and agents from
and against any and all causes of action, claims demands costs, damages,
liabilities, losses, obligations and expenses (including actual attorneys fees)
arising out of or connected with, or claimed to arise out of or be commenced
with, any act performed or omitted to be performed under this agreement. If the
Company is attempting to obtain financing, BDB makes no representations as to
the outcome of any efforts in that regard and the Company acknowledges that BDB
shall not be liable for the Company's failure to obtain any financing as a
result of BDB's services hereunder.
8. EXPENSES: BDB shall be reimbursed by the Company for all reasonable
and necessary out-of-pocket expenses incurred by BDB in connection with the
performance of its obligations hereunder. Any travel and or related expenses
shall require advance reimbursement by the Company, and as such the approval of
the Company.
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10. CONSEQUENTIAL DAMAGES: BDB shall not be liable to the Company for
consequential or incidental damages, including, but not limited to, lost profits
or sales or unnecessary expenses, resulting from the failure of BDB services
hereunder. or to proposed financing not successfully completed.
11. ATTORNEYS' FEES AND EXPENSES: In the event that it should become
necessary for any party to this Agreement to bring an action, including
arbitration, either at law or in equity, to enforce or interpret the terms of
this Agreement, the prevailing party in such action shall be entitled to recover
its reasonable attorneys' fees and expenses as a part of any judgment therein,
in addition to any other award which may be granted.
12. APPLICABLE LAW/VENUE: This Agreement is executed and intended to be
performed in the State of Texas, United States of America, and the laws of such
state and nation shall govern its interpretation and effect. If suit is
instituted by any party hereto for any cause or matter arising from or in
connection with the respective rights or obligations of the parties hereunder,
the sole jurisdiction and venue for such action shall be the State District
Courts of Dallas County, Texas.
13. NOTICE: Any and all notices or other communications required or
permitted by this Agreement or by law shall be deemed served and given when
actually received by personal delivery, by electronic communication, confirmed
by certified mail within ten business days, or by certified mail, return receipt
requested, with first class postage prepaid thereon, to the Party to whom such
notice or communication is directed, addressed as follows:
If to Company:
AmeraPress, Inc.
c/o Xxxxxxxx X. Xxxxx, Xx.
00000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
If to BDB:
B. D. Brooke & Company
P. O. Xxx 0000
Xxxxxx Xxxxx, XX 00000-00X0
With copies to:
Xxx X. Xxxx, President
Texas Equity, Inc.
0000 XxXxxxxx Xxxxx 0000
Xxxxxx, Xxxxx 00000
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Each of the parties hereto may change its address for purposes of this Section
13 by giving written notice of such change in the manner provided for in this
Section 13.
14. SEVERABILITY: Any provision in this Agreement which is, by
competent judicial authority, declared illegal, invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without invalidating the
remaining provisions hereto or affecting the legality, validity or
enforceability of such provision in any other jurisdiction. The parties hereto
agree to negotiate in good faith to replace any illegal, invalid or
unenforceable provision of this Agreement with a legal, valid and enforceable
provision that, to the extent possible, will preserve the economic bargain of
this Agreement, or otherwise to amend this Agreement, including the provision
relating to choice of law, to achieve such result.
15. WAIVER: No Waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a Waiver of any other provision, whether or not
similar, nor shall any Waiver constitute a continuing Waiver. No Waiver shall be
binding unless executed in writing by the party making the Waiver.
16. SUCCESSOR: This Agreement shall be binding upon the parties, and
upon their respective representatives, administrators, successor and assigns,
and shall inure to the benefit of the parties and others released herein and to
their respective heirs, representative, executors, administrators, successors
and assigns.
17. ARBITRATION: Any controversy, arising out of or relating to this
Agreement, or breach of this Agreement, shall be initially submitted to
non-binding Arbitration in accordance with the commercial arbitration rules of
the American Arbitration Association, and judgment of the award rendered by the
arbitrators may be entered in any court having jurisdiction. There shall be
three (3) arbitrators, on to be chosen directly by each party at will, and the
third arbitrator to be selected by the two (2) arbitrators so chosen. Each party
shall pay the fees of the arbitrator he selects as well as the fees of his
attorneys, the expenses of his witnesses and any other expenses connected with
presenting his claim. The costs of the arbitration, including the cost of any
record or transcript of the arbitration, administrative fees, the fee of the
third arbitrator, and all other fees and costs, shall be borne equally by the
parties.
18. CONSTRUCTION:
(A) The language of this Agreement shall in all cases by construed
as a whole, according to its fair meaning, and not strictly
for or against either of the parties,
(B) The section headings used in this Agreement are intended
solely for convenience of reference and shall not in any
manner amplify, limit, modify or otherwise be used in the
interpretation of any of the provision hereof.
15
19. COUNTERPARTS: This Agreement may be executed in any number of
counterparts with effect as if all parties had signed the same document. All
such counterparts shall be deemed an original, shall be construed together and
shall constitute on and the same instrument.
20. ENTIRE AGREEMENT; AMENDMENTS AGREEMENT: This Agreement contains the
entire agreement between the parties hereto with respect to the matter hereof.
The provisions of this Agreement may not be modified or waived except in a
writing signed by each of the parties hereto.
21. REGULATORY AUTHORITIES: This Agreement shall be the subject to the
approval of those regulatory authorities having jurisdiction over such an
Agreement.
22. Time shall be of the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
VOXCOM HOLDINGS, INC.
By:________________________________
Xxxxxxxx X. Xxxxx, Xx.
B.D. BROOKE & COMPANY
By:________________________________
Xxx Xxxxxxx, President
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EXHIBIT E IS SET FORTH IN EXHIBIT 2.02.1
EXHIBIT E-1 IS SET FORTH IN EXHIBIT 2.02.2
EXHIBIT E-2 IS SET FORTH IN EXHIBIT 2.02.3
17
