STOCK EXCHANGE AGREEMENT
This Agreement ("Agreement") is made and entered into on March 5, 1998, by
and among KEMRON ENVIRONMENTAL SERVICES, INC., a New York corporation, as the
acquired company ("KEMRON"); WHITNEY AMERICAN CORPORATION, a Delaware
corporation, as the acquiring company (the "WHAM"); and those persons executing
this Agreement in their capacity as shareholders of KEMRON (the "Shareholders").
WHEREAS, WHAM wishes to acquire and the Shareholders wish to transfer all
the issued and outstanding stock of KEMRON in a transaction intended to qualify
as a reorganization within the meaning of I.R.C. Section 368(a)(1)(B), as
amended.
NOW, THEREFORE, WHAM, KEMRON and the Shareholders adopt this plan of
reorganization and agree as follows:
1. Certain Definitions. As used herein and in any exhibit or schedule
incorporated herein, or in any document, certificate or opinion required to be
delivered pursuant to this Agreement, the following terms shall have the
meanings ascribed below.
(a) "Closing Date" means the date at which Closing hereunder shall
occur, which date shall be March 6, 1998, or any other date which may be
mutually agreed upon by the parties hereto.
(b) "Closing" means the settlement and consummation of the
purchase transaction contemplated hereby to be held at 2:00 p.m. Eastern
Standard Time on the Closing Date at the offices of Xxxx X. Xxxxxxx, Xx., Esq.,
counsel for WHAM, 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, or at such
other place as may be mutually agreed upon by the parties hereto.
(c) "KEMRON Shares" means One Hundred(100%) percent of the issued
and outstanding capital stock of KEMRON to be delivered to WHAM at the Closing.
2. Exchange of Stock
(a) Exchange. Subject to the terms and conditions herein set
forth, at the Closing on the Closing Date;
(i) The Shareholders agree to transfer to WHAM the number of
KEMRON Shares, without par value, shown opposite their names in Exhibit A, in
exchange for an aggregate of Three Million Five Hundred Thousand
(3,500,000) shares of voting common stock of WHAM, $0.00001 par value per share,
(the "Exchange Shares"), to be issued at the Closing to the Shareholders in the
numbers shown opposite their names in Exhibit A.
(ii) The transfer of KEMRON Shares by the Shareholders shall
be effected by the delivery to WHAM at the Closing of certificates representing
the transferred shares endorsed in blank.
(iii) At the Closing and from time to time thereafter the
Shareholders shall execute such additional instruments and take such other
action as WHAM may request in order more effectively to sell, transfer, and
assign the transferred stock to WHAM and to confirm WHAM's title thereto.
(b) Restricted Status of Exchange Shares. The Exchange Shares have
not been registered under the Securities Act of 1933, as amended ("Act"), in
reliance upon exemptions from registration provided by Section 4(2) of the Act
and Rule 506 under the Act and under the securities or blue sky laws of
applicable states or any rules or regulations promulgated thereunder, on the
grounds that the transactions contemplated in this Agreement do not involve any
public offering. The Exchange Shares are "restricted securities" as that term is
defined in Rule 144(a) of the General Rules and Regulations under the Act and
must be held indefinitely, unless they are subsequently registered under the Act
or an exemption from such registration requirements is available for their
resale. The prior written consent of WHAM will be necessary for any transfer of
any or all of the Exchange Shares, unless the shares have been duly registered
under the Act or the transfer is made in accordance with Rule 144 or other
available exemption under the Act. Further, any and all certificates which are
issued representing Exchange Shares shall, unless and until removed in
accordance with law, bear a restrictive legend substantially in the following
form:
"The shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are "restricted
securities" as that term is defined in Rule 144 under the Act. These shares may
not be offered for sale, sold or otherwise transferred except pursuant to an
effective registration statement under the Act, or pursuant to an exemption from
registration under the Act, the availability of which must be established to the
satisfaction of the Company's counsel."
(c) Officers and Directors of WHAM. At the Closing, the current
officers and directors of WHAM shall resign and the persons below shall be
elected as the directors and executive officers of WHAM:
Name Position
1. Xxxx X. Xxxxxxxxx Chairman of the Board, Chief
Executive Officer
2. Xxxxxx X. Xxxxxxxxx, Xx. Executive Vice President, Director
3. Xxxxxxxxxxx Xxxxxxx Executive Vice President, Chief
Operating Officer, Director
4. Xxxx X. Xxxxx Director
5. Xxxxx Xxxxxxxxxx Director
6. Xxxxxxx Xxxxxxxx Director
7. Xxxx Xxxxxxxx Assistant Secretary/Treasurer, Director
3. Representations and Warranties of KEMRON and the Shareholders.
KEMRON and the Shareholders make to WHAM the following representations and
warranties, in reliance upon which WHAM has entered into this Agreement.
(a) Each Shareholder represents and warrants that he, she or it is
not now insolvent and will not be insolvent after selling and delivering the
KEMRON Shares to WHAM on the terms of this Agreement, and that he, she or it is
receiving new consideration at least equal to the full and fair value of the
KEMRON Shares being sold.
(b) KEMRON and the Shareholders understand and acknowledge that (i)
there is no active trading market in the common stock of WHAM, although quoted
name-only on the OTC Board, (ii) WHAM is a shell company with no cash or other
assets, no operations and no full-time or experienced management, (iii) no
person currently an officer, director or shareholder of or professional adviser
to WHAM has made any representation whatsoever to any Shareholder relating to
WHAM's stock price, operations, profitability or prospects following the
Closing, (iv) persons designated by KEMRON and/or the Shareholders will become
the officers and directors of WHAM at the Closing, and no person now an officer
or director of WHAM will be such after the Closing or have any responsibility or
input as to operations after the Closing, the officers and directors of WHAM
solely responsible for its operations and success will be persons designated by
KEMRON and the Shareholders, and (v) the Exchange Shares are speculative and
involve a high degree of risk.
(c) Each Shareholder acknowledges and agrees that he, she or it have
been furnished with substantially the same kind of information regarding WHAM
and its assets, financial condition and plan of operation as would be contained
in a registration statement and included prospectus prepared in connection with
a public offering of the Exchange Shares and has reviewed all information
concerning WHAM publicly available on the website maintained by the Securities
and Exchange Commission. Each Shareholder further represents that he, she or it
has had an opportunity to ask questions of and receive answers from WHAM and its
officers and directors regarding WHAM and its assets, financial condition and
plan of operation and the terms and conditions of the issuance of the Exchange
Shares.
(d) The Shareholder, alone or together with the Shareholder's
adviser(s), have such knowledge and experience in financial, tax and business
matters as to enable Shareholder to utilize the information made available by
WHAM, in connection with the Exchange and issuance of the Exchange Shares, to
evaluate the merits and risks of acquiring the Exchange Shares and to make an
informed investment decision with respect thereto.
(e) Each Shareholder agrees that he, she or it was not solicited by
WHAM by any form of general solicitation or general advertising, including but
not limited to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio, or made available over telephone lines by any information
service, or any seminar or meeting whose attendees had been invited by any means
of general solicitation or general advertising.
(f) Except as expressly set forth in this Agreement and any
Schedules, Exhibits or other attachments hereto, WHAM has not made any
representation or warranty to any Shareholder in connection with this Agreement,
and WHAM has made no communication to any Shareholder that constitutes tax or
investment advice.
(g) Authority. The Shareholders have valid and marketable title to
the KEMRON Shares free and clear of any claims, liens, trusts, encumbrances,
rights or interests of any person. The Shareholders have the right, power, and
authority to enter into, and perform their respective obligations under this
Agreement. This Agreement has been and as of the Closing Date will be, duly and
validly authorized, executed and delivered on behalf of the Shareholders, have
all requisite power and authority to consummate the transactions contemplated
herein. This Agreement is the valid and binding obligation of the Shareholders.
No third-party approvals or consents of any kind are necessary in connection
with this Agreement.
(h) Organization and Good Standing. KEMRON is duly organized, validly
existing and in good standing under the laws of the State of New York and has
full charter power to carry on its business as it is now being conducted and to
own and operate the properties now owned, operated or leased by it. KEMRON is
qualified to do business as a foreign corporation in every state in which the
nature of the business carried on and properties owned or leased by them
presently requires them to be so qualified in any other jurisdiction.
(i) Capitalization. The authorized capitalization of KEMRON consists
of Ten Thousand (10,000) shares of Common Stock, $0.01 par value per share. As
of the date hereof, KEMRON has issued and outstanding 315 shares of such Common
Stock. All of such issued and outstanding shares have been duly
and validly issued, are fully paid and non-assessable and were issued and sold
pursuant to, and within limitations contained in, appropriate permits and
consents of each governmental authority from whom any permit or consent was
required.
(j) Title to KEMRON Shares. The Shareholders have good and valid
title to all of the issued and outstanding common stock of KEMRON, free and
clear of all claims, liens, mortgages, charges, security interests, encumbrances
and other restrictions or limitations of any kind whatsoever. The Shareholders
are not a party to, or bound by, any other agreement, instrument or
understanding restricting the transfer of such interests.
(k) Financial Statements. Attached hereto and incorporated herein
by this reference, is the audited consolidated Financial Statements of KEMRON
for the year ended May 31, 1997, accompanied by the related opinions of KEMRON's
official independent auditors as of such dates and for such periods (the
"Financial Statements"). Said Financial Statements (i) were prepared in
accordance with the books and records of KEMRON; (ii) were prepared in
accordance with generally accepted accounting principles consistently applied;
and (iii) sets forth fairly KEMRON's financial condition and the results of its
operations as of the relevant dates thereof and for the periods covered thereby.
Except as to the extent reflected or reserved against in the Financial
Statements, KEMRON as of the date thereof had no liability or obligation of any
nature, whether accrued, absolute, contingent or otherwise, including without
limitation, tax liabilities due or to become due and whether incurred in respect
of or measured by the income of KEMRON for any period prior to such date, or
arising out of any transaction entered into, or any state of facts existing,
prior hereto. Since the date of such Financial Statements, absent written
disclosure, no credit or charge has been made to any surplus account of KEMRON.
(l) Events Subsequent to May 31, 1997. Since May 31, 1997, absent
a written disclosure delivered to WHAM, there has not been any:
(i) material adverse change in the financial condition,
liabilities, assets, business, or prospects of KEMRON;
(ii) destruction, damage to, or loss of any asset of KEMRON
that may substantially affect the financial condition, business, or prospects of
KEMRON;
(iii) change in accounting methods or practices (including,
without limitation, any change in inventory accounting or in depreciation or
amortization policies or rates) by KEMRON;
(iv) revaluation by KEMRON of any of its assets;
(v) declaration, setting aside, or payment of a dividend or
other dividend or other distribution in respect to the capital stock of KEMRON,
or any direct or indirect redemption, purchase, or other acquisition
by KEMRON of any of its shares of capital stock;
(vi) any other transaction by KEMRON except in the ordinary
course of business;
(vii) direct or indirect increase in the salary or other
compensation payable or to become payable by KEMRON to any of its officers,
directors or employees, or the declaration, payment or commitment or obligations
of any kind for the payment by KEMRON of a bonus or other additional salary or
compensation to any such person;
(viii) sale or transfer of any single asset of KEMRON having a
value in excess of $1,000;
(ix) amendment or termination of any contract, agreement, or
license to which KEMRON is a party except in the ordinary course of business;
(x) loan by KEMRON to any person or entity, or guaranty by
KEMRON of any loan;
(xi) mortgage, pledge, or other encumbrance of any asset of
KEMRON;
(xii) waiver or release of any right or claim of KEMRON;
(xiii) issuance or sale by KEMRON of any shares of KEMRON's
capital stock;
(xiv) bid submitted or sales contract entered into or any other
contract or agreement entered into involving more than $1,000 in each case,
except in the ordinary course of business;
(xv) obligation or debt incurred in excess of $1,000.
(m) Liabilities. KEMRON has no known debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
whether due or to become due, that is not fully provided or reserved for in the
Financial Statements, including the notes thereto, except for those (1) that may
have been incurred after the date of the Financial Statements in the ordinary
course of business, or (2) that are not required by generally accepted
accounting principles to be included in the Financial Statements. All debts,
liabilities and obligations incurred after the date of the Financial Statements
were incurred in the ordinary course of business and not in violation of any
provision of this Agreement, are usual and normal in amount both individually
and in the aggregate.
(n) Taxes. Within the time and in the manner prescribed by law,
KEMRON has filed all Federal, state and local tax returns required by law and
have paid all taxes, assessments, and penalties due and payable. The
Shareholders shall cause KEMRON (i) to prepare and file all Federal, state and
local income tax returns for KEMRON required to be filed through the Closing
Date covering the most recent taxable period; (ii) to pay all taxes, penalties
and assessments related to such returns, and upon filing thereof shall promptly
supply copies of such returns to WHAM. The provision for taxes
reflected in the Financial Statements are adequate for any and all federal,
state, county, and local taxes for the period ending on the date of such
Financial Statements and for all prior periods, whether or not disputed,
including without limitation any and all taxes that may be assessed by the
Internal Revenue Service as a result of an audit of the Company's tax returns.
There are no present disputes as to taxes of any nature payable by KEMRON or
with respect to the KEMRON Shares. On or before the Closing Date, KEMRON shall
have furnished to WHAM, in form satisfactory to it, true and accurate copies of
all Federal, state and local tax returns, filings, waivers, elections and
deficiency notices for each of the past fiscal year of KEMRON and a true and
complete copy of the unaudited consolidated and consolidating balance sheets of
KEMRON as of February 28, 1998 ("Current Balance Sheet").
(o) Title to Properties and Assets. KEMRON has good and marketable
title to its properties and assets, including the properties and assets
reflected in the Current Balance Sheet referred to above (except as since
disposed of in the ordinary course of business) subject to no liens, mortgages,
encumbrances or charges which are not reflected in the Current Balance Sheet or
which, either in any case or in the aggregate, are substantial in amount or
which materially detract from the value of the property subject thereto or which
materially impair the operation of KEMRON, or which have not arisen otherwise
than in the ordinary course of business. No personal property needed by KEMRON
for the conduct of its business is held under any lease, security agreement,
conditional sales contract, or other title retention or security arrangement, or
is located other than in the possession and under the control of KEMRON. The
tangible personal property reflected in those books and records constitutes all
such tangible personal property necessary for the conduct by KEMRON of its
business as now conducted.
(p) Proprietary Rights. KEMRON owns or possesses adequate licenses
or other rights to use all patents, patent applications, trademarks, trademark
applications, trade secrets, service marks, trade names, copyrights, inventions,
drawings, designs, customer lists, proprietary know-how or information, or other
rights with respect thereto (collectively referred to as "Proprietary Rights"),
used by it and the same are sufficient to conduct such business as it has been
and is now being conducted. The operations of KEMRON neither conflict with nor
infringe, and no one has asserted to KEMRON that such operations conflict with
or infringe, any intangible property rights owned, possessed or used by any
third party which are of the same kind as the Proprietary Rights. There are no
claims, disputes, actions, proceedings, suits or appeals pending against KEMRON
with respect to any Proprietary Rights and none has been threatened against
KEMRON. To the best knowledge of KEMRON (after reasonable investigation), there
are no facts which would result in any claim which would have an adverse effect
on the condition (financial or otherwise), business, net worth, assets,
properties or operations of KEMRON
based on an assertion that KEMRON does not have the unrestricted right to use,
free of any rights or claims of others, all Proprietary Rights.
(q) Insurance. Prior to the Closing Date, KEMRON shall have
delivered, in form satisfactory to WHAM pursuant to this subparagraph, a
certificate or certificates of all insurance coverage of KEMRON. Such
certificates evidence policies of fire, liability and other forms of casualty
insurance and workmen's compensation insurance held by KEMRON. Such policies
will be maintained in force and in effect by KEMRON in present amounts up to and
including the Closing Date. KEMRON is not in material default under any of such
policies.
(r) Contracts. The Shareholders have previously submitted a list
of all written contracts and bids and as further detailed and a summary of all
oral contracts and bids of the following categories to which KEMRON is a party:
(i) Contracts not made in the ordinary course of business
(excluding this Agreement and the Exhibits hereto), and all material contracts,
whether or not made in the ordinary course of business;
(ii) Employment contracts;
(iii) Contracts with a labor union or association;
(iv) Bonus, pension, profit sharing, retirement, stock
purchase, stock option, hospitalization, insurance or similar plans providing
employee benefits;
(v) Distribution, franchise, sales agency or advertising
contracts;
(vi) Output or requirements agreements;
(vii) Any indenture, mortgage deed of trust or lease;
(viii) Options with respect to any property, real or personal,
whether as grantor or grantee;
(ix) Contracts or outstanding bids involving potential
expenditures or liabilities of KEMRON in excess of $1,000.00;
(x) Contracts continuing over a period of more than one (1)
year from their respective dates;
(xi) Contracts or commitments relating to commission
arrangements with others;
(xii) Patent, trade name, and all other license agreements, to
which KEMRON is a party, either as licensor or licensee;
(xiii) Contracts containing covenants limiting the freedom of
KEMRON to compete in any line of business or with any person; and
(xiv) Agreements evidencing all indebtedness.
There is no default or event that with notice or lapse of time, or both, would
constitute a default by KEMRON, or to KEMRON's knowledge, any other party to
any of these agreements. KEMRON has received no notice that any party to any of
these agreements intends to cancel or terminate any of these agreements. KEMRON
is not a party to, nor is KEMRON or the property of KEMRON bound by any
agreement that is materially adverse to the business, properties or financial
condition of KEMRON. KEMRON is not a party to any significant contract except as
provided in writing.
(s) Banks. Prior to the execution of this Agreement, the
Shareholders have delivered to WHAM pursuant to this subparagraph a complete
list showing the name of each bank in which KEMRON maintains accounts (including
a description of the account), certificates of deposit or safe deposit boxes and
the names of all persons authorized to draw thereon or to have access thereto.
(t) Litigation. There is no action, suit or proceeding pending
before any court or governmental agency, authority or body and, to the knowledge
of KEMRON, there is no action, suit or proceeding threatened or pending which,
if it were to result in a decision adverse to KEMRON, would in the judgment of
KEMRON result in any material adverse change in the condition, financial or
otherwise, business or prospects of KEMRON or would materially adversely affect
its properties or assets.
(u) No Resulting Breach or Default. The consummation of the
transactions contemplated by this Agreement will not result in or constitute any
of the following: (i) a default or any event that, with notice or lapse of time
or both, would be a default, breach, or violation of applicable law or
regulation or of the Articles of Incorporation or Bylaws of KEMRON, or any
judgment, order, writ, injunction, or decree of any court or governmental
authority or of any lease, license, promissory note, conditional sales contract,
commitment, indenture, mortgage, deed of trust, or other agreement, instrument,
or arrangement to which KEMRON is a party or by which its property is bound;
(ii) an event that would permit a party to terminate any agreement or to
accelerate the maturity of any indebtedness or other obligation of KEMRON, or
(iii) the creation or imposition of any security interest, lien, charge, or
encumbrance on any of the properties or assets of KEMRON.
(v) Corporate Documents. KEMRON has furnished to WHAM for its
examination (i) copies of the Articles of Incorporation and Bylaws of KEMRON,
including all amendments, (ii) the complete minute books of KEMRON of all
meetings of the shareholders and Board of Directors of KEMRON, (iii) the stock
transfer books of KEMRON setting forth all transfers of capital stock. The
meetings of the Board of Directors and Shareholders referred to therein were
duly called and duly held and the signatures appearing on all documents
contained therein are the true signatures of the person purporting to have
signed the same. All documents delivered hereto contain accurate records of
all meetings and accurately reflect all corporate action of the stockholders and
directors of KEMRON.
(w) Compliance with Other Instruments, etc.; None Burdensome. To
the best of the Shareholder's knowledge and belief, KEMRON is not in violation
of any term or provision of any charter, by-law, mortgage, indenture, contract,
agreement, instrument, judgment, decree, order, injunction, statute, rule or
regulation. The execution, delivery and performance of and compliance with this
Agreement and the KEMRON Shares to be exchanged hereunder will not result in any
such violation or be in conflict with or constitute a default under any such
term or provision, or result in the creation of any mortgage, lien, encumbrance
or charge upon any of the properties or assets of KEMRON pursuant to any such
term or provision. There is no term or provision of this Agreement which
materially adversely affects the business, prospects, condition (financial or
other), or operations of KEMRON or any of its properties or assets.
(x) Indebtedness to Officers, Directors and Shareholders. KEMRON
is not indebted to any person who is an officer, director or shareholder of
KEMRON in any amount whatsoever other than for salaries for services rendered or
for reimbursable business expenses.
(y) Brokerage and Finder's Fees. KEMRON has not incurred any
unpaid liability to any broker, finder or agent for any brokerage fees, finder's
fees or commissions with respect to the transactions contemplated by this
Agreement.
(z) Full Disclosure. On or prior to the date of the execution of
this Agreement, the Shareholders have delivered or made available to WHAM all of
the material documents and contracts to which KEMRON is a party which in any way
affects any of the properties, assets or business of KEMRON. Neither the
Financial Statements referred to in subparagraph (e) of this Paragraph nor any
other certificate or statement furnished to WHAM by the Shareholders or in
behalf of KEMRON in connection with the transactions contemplated hereby nor
this Agreement contains any untrue statement of a material fact, known as of the
date thereof, or omits to state a material fact necessary in order to make the
statements contained therein or herein not misleading. There is no known fact
which materially adversely affects the business, prospects or condition
(financial or other) or operations of KEMRON or any of its properties or assets
which has not been set forth herein or disclosed by the Financial Statements
referred to herein or in any certificate or statement furnished to WHAM by the
Shareholders or in behalf of KEMRON.
4. Conduct of KEMRON's Business Pending Closing. KEMRON and the
Shareholders hereby covenant and agree with WHAM that between the date hereof
and the Closing Date:
(a) KEMRON will not, without the prior written consent of WHAM,
amend or otherwise change its Articles of Incorporation or By-laws, or any
instrument similar in purpose and intent to them.
(b) The Shareholders will not, without the prior written consent
of WHAM, transfer or encumber in any way, voluntarily or involuntarily, any of
the KEMRON Shares.
(c) KEMRON will not declare or pay any dividend or make any other
distribution of assets of any kind whatsoever to any of its Shareholders in
redemption of or as the purchase price for any of its capital stock, or in
discharge or cancellation, whether in whole or in part, of any indebtedness,
whether in payment of principal, interest or otherwise, owing to any of such
Shareholders.
(d) KEMRON will conduct its business diligently in the ordinary
course, use its best efforts to preserve intact its business organization, use
its best efforts to retain in its employ all of its key employees, and use its
best efforts to preserve its relationships with its suppliers and customers and
others having business relations with it.
(e) KEMRON will not make any commitments for capital expenditures
or for indirect charges exceeding $1,000 except with respect to expenditures
required in the normal course of performing current contracts.
(f) KEMRON will not sell or transfer any of its assets, cancel any
debts or claims, or mortgage, pledge or subject to lien, charge or encumbrance
of any kind, except liens for taxes not due, any of its assets, except in the
ordinary course of business.
(g) KEMRON will not, except in the ordinary course of business
amend or terminate any material contract or agreement to which it is a party, or
enter into or become a party to any contract or agreement under which (i) the
value of services to be performed or the cost of goods to be sold will exceed
$1,000; or (ii) the reasonably anticipated costs and expenses will exceed the
anticipated receipts.
(h) KEMRON will continue in force its existing insurance policies,
subject only to variation in amounts required by the ordinary operations of its
business.
(i) KEMRON will not increase the compensation payable or to
become payable to any of its officers, directors, employees or agents, or any
bonus payment or similar arrangement made to or with any of such officers,
directors, employees or agents.
(j) KEMRON will not incur any indebtness to any person who is an
officer, director or shareholder of KEMRON in any amount whatsoever other than
for salaries for services rendered or for reimbursable business expenses.
(k) KEMRON and its representatives will keep confidential any
information not otherwise readily available from public sources which they or
their representatives obtain from WHAM concerning the properties, assets and
business of WHAM.
5. Representations and Warranties of WHAM. WHAM hereby makes the
following representations and warranties in reliance upon which the KEMRON
Shareholders have entered into this Agreement.
(a) Organization and Good Standing. WHAM is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power to carry on its business as it is now
being conducted and to own and operate the properties now owned, operated or
leased by it. WHAM is qualified to do business as a foreign corporation in all
states in which the nature of the business carried on and properties owned or
leased by WHAM requires WHAM to be so qualified in any other jurisdiction.
WHAM's filings with the Securities and Exchange Commission, Washington, D.C.
("SEC"), are current and have been timely filed. WHAM will ensure that the
latest Form 10-QSB, for the quarter ended February 28, 1998, is or will be
timely filed with the SEC.
(b) Authority. The execution of this Agreement by WHAM and its
delivery to the Shareholders has been duly authorized by the Board of Directors
of WHAM, and no further corporate action is necessary on the part of WHAM to
make this Agreement valid and binding upon WHAM in accordance with its terms.
(c) Capitalization. The authorized capitalization of WHAM consists
of 50,000,000 shares of common stock, $0.00001 par value per share, and
5,000,000 shares of preferred stock, $0.00001 par value per share, of which
362,515 shares of Common are issued and outstanding, fully paid and non-
assessable, and no shares of preferred stock have been issued.
(d) Litigation. There is no action, suit or proceeding pending
before any court or governmental agency, authority or body and, to the knowledge
of WHAM, there is no action, suit proceeding threatened or pending
which, if it were to result in a decision adverse to WHAM, would in the judgment
of WHAM result in any material adverse change in the condition, financial or
otherwise, business or prospects of WHAM or would materially adversely affect
its properties or assets.
(e) No Defaults. The consummation of the transactions contemplated
by this Agreement will not result in or constitute any of the following: (i) a
default or any event that, with notice or lapse of time or both, would be a
default, breach, or violation of applicable law or regulation or of the Articles
of Incorporation or Bylaws of WHAM, or any judgment, order, writ, injunction, or
decree of any court or governmental authority or of any lease, license,
promissory note, conditional sales contract, commitment, indenture, mortgage,
deed of trust, or other agreement, instrument, or arrangement to which WHAM is a
party or by which its property is bound; (ii) an event that would permit any
party to terminate any agreement or to accelerate the maturity of any
indebtedness or other obligation of WHAM, or (iii) the creation or imposition of
any security interest, lien, charge, or encumbrance on any of the properties or
assets of WHAM.
6. Indemnification by the KEMRON and Xxxx X. Xxxxxxxxx. KEMRON and Xxxx
X. Xxxxxxxxx (hereafter the "Seller Group"), jointly and severally, shall
indemnify, defend and hold harmless WHAM against and in respect of any and all
actions, causes of action, assessments, claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including any liabilities for obligations which arise after the Closing Date
based on events or conditions occurring before the Closing Date, and interest,
penalties and reasonable attorneys' fees and expenses, that WHAM shall incur or
suffer, which arise, result from or relate to any inaccuracy in, or any breach
of any of the Seller Group's representations or warranties, or any failure by
the Seller Group to perform any of their covenants or agreements in this
Agreement or in any schedule, certificate, exhibit or other instrument furnished
or to be furnished by any of the Seller Group under this Agreement; provided,
however, that the right to indemnity as aforesaid with respect to a breach by
the Seller Group or any of their representations or warranties in this Agreement
shall be limited by the following: (i) such indemnity shall apply only if the
facts or circumstances resulting in such breach are such as to result in damages
to WHAM in excess of $10,000 in the aggregate; and (ii) such right to indemnity
shall apply only as to all claims giving rise to a right of indemnity hereunder
of which WHAM has received actual notice within twenty-four (24) months after
the Closing Date.
7. Indemnification by WHAM. Subject to the terms and conditions of this
Xxxxxxxxx 0, XXXX hereby agrees to indemnify, defend and hold harmless the
Shareholders and their respective successors, if any, and their officers,
directors and controlling persons, at any time after the Closing Date, from and
against all demands, claims, actions, or causes of action, assessments, losses,
damages, liabilities, costs and expenses, including, without limitation,
interest, penalties and attorneys' fees and expenses, which were reasonably
incurred by or imposed upon the Shareholders or KEMRON, net of any insurance
proceeds received by the Shareholders or KEMRON with respect thereto, asserted
against, resulting to, imposed upon or incurred by the Shareholders or KEMRON,
directly or indirectly, by reason of or resulting from any misrepresentation,
breach of any warranty, non-performance or breach of any covenant, obligation or
agreement of WHAM contained in this Agreement; provided, however, that the right
to indemnity as aforesaid with respect to a breach by WHAM or any of its
representations or warranties in this Agreement shall be limited by the
following: (i) such indemnity shall apply only if the facts or circumstances
resulting in such breach are such as to result in damages to the Shareholders or
KEMRON in excess of $10,000 in the aggregate; and (ii) such right to indemnity
shall apply only as to all claims giving rise to a right of indemnity hereunder
of which the Shareholders or KEMRON has received actual notice within twenty-
four (24) months after the Closing Date.
8. Claims by Third Parties. The obligations and liabilities of an
indemnifying party under any provision of this Agreement with respect to claims
relating to third parties shall be subject to the following terms and
conditions:
(a) Whenever any indemnified party shall have received notice that
a claim has been asserted or threatened against such indemnified party, which,
if valid, would subject the indemnifying party to an indemnity obligation under
this Agreement, the indemnified party shall promptly notify the indemnifying
party of such claim in the manner described in Paragraph 22; provided, however,
that the failure of the indemnified party to give timely notice hereunder shall
not relieve the indemnifying party of its indemnification obligations under this
Agreement unless, and only to the extent that, such failure caused the damages
for which the indemnifying party is obligated to be greater than they would have
been had the indemnified party given timely notice.
(b) The indemnifying party or its designee will have the right but
not the obligation, to assume the defense of any claim described in Paragraph 6
or 7 above, provided, however, the indemnified party shall have the right at its
option to defend and to compromise or settle such claim which compromise or
settlement shall be made only with the written consent of the indemnifying
party, such consent not be unreasonably withheld. If the indemnifying party
fails to assume the defense of such claim within 15 days after receipt of notice
of a claim pursuant to Paragraph 22, the indemnified
party against which such claim has been asserted will (upon delivering notice to
such effect to the indemnifying party) have the right to undertake, at the
indemnifying party's cost and expense, the defense, compromise or settlement of
such claim on behalf of and for the account and risk of the indemnifying party,
subject to the right of the indemnifying party to assume the defense of such
claim at any time prior to settlement, compromise or final determination thereof
and provided, however, that the indemnified party shall not enter into any such
compromise or settlement without the written consent of the indemnifying party.
In the event the indemnified party assumes defense of the claim, the indemnified
party will keep the indemnifying party reasonably informed of the progress of
any such defense, compromise or settlement. The indemnifying party shall not be
liable for any settlement of any action effected without its consent, but if
settled with the consent of the indemnifying party or if there be a final
judgment beyond review or appeal, for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless an indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Any party who does not undertake the defense of a claim may, at its own expense,
retain such additional attorneys and other advisors as it shall deem necessary,
which attorneys and advisors will be permitted by the party undertaking such
defense, and its attorneys, to observe the defense of such claim.
9. Indemnity for Taxes of Indemnified Party. Each party hereto further
agrees that, with respect to payment or indemnity under this Paragraph 9, such
payment or indemnity shall include any amount necessary to hold the indemnified
party harmless on an after-tax basis from all taxes required to be paid with
respect to the receipt of such payment or indemnity under the laws of any
Federal, state or local government or taxing authority in the United States, or
under the laws of any foreign government of taxing authority or governmental
subdivision of a foreign country.
10. Shareholders' Representatives. The Shareholders hereby irrevocably
designate and appoint Xxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx, Xx., Esq., or
either of them, as their agents and attorneys in fact ("Shareholders'
Representatives"), with full power and authority until the Closing to execute,
deliver, and receive on their behalf all notices, requests, and other
communications hereunder; to fix and alter on their behalf the date, time, and
place of the Closing; to waive, amend, or modify any provisions of this
Agreement, and to take such other action on their behalf in connection with this
Agreement, the Closing, and the transactions contemplated hereby as such agent
or agents deem appropriate; provided, however, that no such waiver, amendment,
or modification may be made if it would decrease the number of shares to be
issued to the Shareholders or increase the extent of
their obligation to indemnify WHAM hereunder.
11. Conditions Precedent to Shareholders' Obligations. The
obligations of the Shareholders hereunder are subject to each of the
conditions set forth below being fulfilled on the Closing Date. Any of such
conditions may, at the option of the Shareholders, be waived:
(a) Opinion of Counsel. The Shareholders shall have received an
opinion of Xxxx X. Xxxxxxx, Xx., Esq., counsel for WHAM, dated as of the
Closing Date, to the effect that:
(i) WHAM is a corporation duly organized, validly existing
and in good standing under the laws of the Delaware.
(ii) WHAM's Board of Directors have approved the
transactions contemplated by this Agreement.
(iii) All SEC filings have been timely made, including those
for the latest quarter.
(b) Conditions Performed. Except as provided herein, as of the
Closing Date, all the terms and conditions of this Agreement to be complied
with and performed by WHAM at or before the Closing Date shall have been
complied with or performed in all material respects.
(c) Representations and Warranties True at Closing. The
representations and warranties of WHAM in this Agreement shall be correct in
all material respects at and as of the Closing Date, and WHAM shall have
delivered to the Shareholders a certificate to such effect signed by an
executive officer of WHAM.
12. Conditions of WHAM's Obligations. The obligations of WHAM
hereunder are subject to each of the conditions set forth below being
fulfilled on the Closing Date, or thereafter as provided below. Any of such
conditions can be waived by WHAM.
(a) KEMRON's Board of Directors' Approval. The Board of
Directors of KEMRON shall have approved the transactions contemplated by this
Agreement.
(b) Opinion of Counsel. On or before the Closing Date, WHAM
shall have received an opinion of Xxxxxx X. Xxxxxxxxx, Xx., Esq., counsel for
KEMRON, dated the Closing Date, as to the matters below and setting forth the
documents examined as the basis therefor:
(i) KEMRON is a corporation duly organized and validly
existing and in good standing under the laws of the State of New York with
requisite corporate power and authority to transact it business and own its
properties.
(ii) All of the KEMRON Shares have been duly authorized and
issued, are validly outstanding, are fully paid and non-assessable.
(iii) The capitalization of KEMRON is as set forth in this
Agreement. Other than as provided herein, there are no outstanding options or
rights with respect to the capital stock of KEMRON or any securities
convertible into or exchangeable for shares of such stock, or any other
commitments of any kind for the issuance of additional shares of interests or
securities of KEMRON.
(iv) Neither the execution and delivery of this Agreement
nor the performance of the transactions contemplated hereby will (a)
constitute a breach of the Articles of Incorporation or By-Laws of KEMRON or
any evidence of indebtedness or agreement to which it or they are a party, or
constitute an event which entitles any other party to any agreement to which
KEMRON is a party to terminate such agreement, (b) cause a default under any
mortgage or deed of trust, or other lien, charge or encumbrance to which any
of KEMRON's property is subject, (c) accelerate, or constitute an event
entitling, or which would on notice or lapse of time or both, entitle the
holder of any indebtedness of KEMRON to accelerate, or (d) conflict with or
result in the breach of any writ, injunction or decree of any court or
governmental instrumentality;
(v) This Agreement has been duly and validly authorized,
executed and delivered by the Shareholders and KEMRON and is valid and binding
upon them in accordance with its terms;
(vi) The Shareholders have good and marketable title to the
shares of capital stock of KEMRON with full right and power to transfer and
sell said shares to WHAM, free and clear of all liens, encumbrances and
claims;
(vii) Such counsel does not know of any action, suit,
proceeding or claim pending or threatened against KEMRON, its or their
property or business, or the transactions contemplated by this Agreement;
(viii) No consent, approval or other order of any
governmental or administrative board or body is required for the execution and
delivery by the Shareholders of this Agreement and the sale of the KEMRON
Shares to WHAM pursuant hereto.
(ix) KEMRON has one subsidiary, Kemron Construction
Corporation, and none other.
(c) Instruments of Transfer. WHAM shall have received
instruments of transfer effecting the transfer of the KEMRON Shares to WHAM.
(d) Compliance with Conditions. As of the Closing Date, all the
terms and conditions of this Agreement to be complied with and performed by
KEMRON on or before the Closing Date shall have been complied with and
performed in all material respects. KEMRON shall have delivered to WHAM
certificate(s) to such effect in form and substance satisfactory to WHAM.
(e) Correctness of Representations and Warranties. The
representations and warranties of KEMRON herein shall be correct in all
material respect at and as of the Closing Date, and KEMRON, respectively,
shall have delivered to WHAM a certificate to such effect.
(f) Certificate of Good Standing. KEMRON shall deliver to WHAM
at the Closing, a certificate issued by the New York Secretary of State
certifying as to the good standing of KEMRON as of a date not more than
fifteen (15) days prior to the Closing Date.
13. Additional Covenants and Undertaking of the parties. The
performance and adherence to the following undertakings and covenants of WHAM
and the Shareholders are additional conditions to the parties' obligations
under this Agreement.
(a) Notice of Certain Defaults or Claims. Each party shall give
prompt notice to the other of any notice of default relating to either party
received subsequent to the date of this Agreement and prior to the Closing
Date and of the assertion of any claim which, if upheld, or the occurrence of
any event, which would render inaccurate any representation or warranty of the
affected party.
(b) Implementation of Representations and Warranties. Each
party will take all reasonable action within its or their capability necessary
to render accurate as of the Closing Date such party's representations and
warranties contained in this Agreement and each party will refrain from taking
any action which would render inaccurate as of the Closing Date any such
representations or warranties.
(c) Delivery of Additional Documents. Each party will execute
and deliver, or cause to be executed and delivered, such additional
assignments, endorsements and other documents as the other party may
reasonably request for the purpose of carrying out this Agreement.
(d) Consents. The Shareholders shall cause KEMRON to prosecute
and obtain appropriate consents and authorization of all cognizant government
agencies necessary to approve the transfer of control of KEMRON without
adverse effects upon the continuation of all contracts, if any.
(e) Special Covenants of KEMRON and the Shareholders. KEMRON
and the Shareholders agree that following the Closing, they will cause the
following actions to be taken by WHAM:
(i) Press Releases. Any press releases necessary will be
promptly disseminated by customary means.
(ii) SEC Filings. KEMRON and the Shareholders acknowledge
that WHAM is subject to the reporting and informational requirements of
Section 13 of the Securities Exchange Act of 1934, as amended ("Exchange
Act"). Such new directors and executive officers and all Shareholders who
after the Exchange hold five percent or more of WHAM's common stock shall as
applicable promptly and timely file Form 3 reports and Schedule 13D's with the
Securities and Exchange Commission ("Commission"), as required by law. KEMRON
and the Shareholders also agree that after the Closing they will cause WHAM to
timely file a report on Form 8-K and to timely file (within all permitted
extensions) all audited and proforma consolidated financial statements
required by Form 8-K.
(f) WHAM Shareholder Approval. The parties acknowledge that
WHAM, absent first obtaining the consent of its shareholders for the Exchange,
must comply with Section 14(f) of the Exchange Act and Rule 14f-1 of the
Commission thereunder, which requires ten days' prior notice to the Commission
and to WHAM's shareholders before the new members of WHAM's board of directors
designated by KEMRON may take office. WHAM, KEMRON and the Shareholders agree
that the written concurrence pursuant to Section 228 of the Delaware General
Corporation Law of two (2) shareholders of WHAM holding in the aggregate more
than fifty percent of WHAM's issued and outstanding shares in lieu of a
general meeting of its shareholders, will constitute the approval of WHAM's
shareholders.
(g) No Reverse Split. The parties acknowledge that, following
the Closing, the Shareholders when acting as a group will hold the voting
power to effect any corporate action. It is expressly agreed among WHAM,
KEMRON and the Shareholders that, for a period of eighteen (18) months
following the Closing ("Period"), WHAM shall not effect any "prohibited
action," defined as any reverse split or combination of its common shares, or
any reorganization, recapitalization or other action whatsoever (other than a
merger, exchange, consolidation or similar transaction with an unaffiliated
entity) which has the effect of changing the number of outstanding WHAM common
shares into a smaller number of common shares. Each Shareholder expressly
agrees that, during the Period, he, she or it will not vote for or support any
such prohibited action nor grant a proxy or other voting right to a person
other than a Shareholder to vote at any meeting or act by written consent on a
proposal to effect a prohibited action, and will affirmatively oppose any
attempt to effect a prohibited action during the Period.
This provision is intended for the protection of existing shareholders of
WHAM and persons who become shareholders during the Period, and all parties
agree that this provision and the duration of the Period is reasonable. The
parties expressly agree that all shareholders of WHAM at the time of the
taking of a prohibited action are or shall be third party beneficiaries of
this provision, and any one or more of such shareholders may bring an
injunctive action to prevent a prohibited action(s) or an action to force WHAM
to revoke or rescind a prohibited action as if it had never been effected, or
may otherwise judicially enforce this provision. Any shareholder prevailing in
such injunctive or other action shall be entitled to reimbursement from WHAM
for the costs and reasonable attorneys' fees incurred in bringing such
action(s).
14. The Closing.
(a) Time and Place. The Closing of the transactions
contemplated by this Agreement shall be at the offices of Xxxx X. Xxxxxxx,
Xx., Esq., XXXXXXX & COMPANY, 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX, at
2:00 p.m. on March 6, 1998, or any other date or place that may mutually be
agreed upon by the parties.
(b) Documents to be Delivered by the Shareholders on the Closing
Date. On the Closing Date, the Shareholders shall deliver to WHAM, in form
satisfactory to WHAM's counsel, the following documents:
(i) copies of certificates representing the KEMRON Shares,
on which there is no endorsement, legend or notice of adverse claims, duly
endorsed by the Shareholders for transfer;
(ii) all instruments referred to in Paragraph 13 above, the
delivery of which are therein specified as conditions to WHAM's obligation to
close.
(c) Documents Delivered by WHAM on Closing Date. All
instruments referred to in Paragraph 11 above, the delivery of which are
therein specified as conditions to the Shareholders' obligation to close.
15. Access to Information.
(a) KEMRON's Access to Information and Documentation. WHAM will
afford to a representative or representatives of KEMRON the opportunity upon
reasonable request and during regular business hours to make a reasonable
investigation of WHAM's operations. If for any reason the Closing
contemplated by this Agreement is not consummated, KEMRON and the Shareholders
agree not to disclose to any person any non-public information obtained by
them from such access and investigation.
(b) WHAM's Access to Information and Documentation. The
Shareholders shall cause KEMRON to afford to representatives of WHAM, upon
reasonable request and during regular business hours, full and free access to
the property, business records, stock book, minute books, records and books of
account, instruments, documents and evidences of title of KEMRON so that WHAM
may have full opportunity to make such investigation as it shall desire to
make of the affairs of KEMRON in its sole and absolute discretion. If for any
reason the Closing contemplated by this Agreement is not consummated, WHAM
agrees not to disclose to any person any information obtained by it from such
access and investigation.
(c) Effect of Investigations. Any investigations of KEMRON or
WHAM as permitted by this Paragraph shall not affect any of the
representations and warranties hereunder and shall be conducted in such manner
as will not interfere unreasonably with the operations of the business or the
personnel of WHAM or KEMRON, as the case may be.
16. Costs.
(a) Finders' Fees. Each of the Shareholders, KEMRON and WHAM
represents and warrants that it has dealt with no broker or finder in
connection with any of the transactions contemplated by this Agreement, and,
insofar as it knows, no broker or other person is entitled to any commission
or finder's fee in connection with any of these transactions. The
Shareholders jointly and severally agree to indemnify and hold harmless WHAM,
and WHAM agrees to indemnify and hold them harmless against any loss,
liability, damage, cost, claim or expense incurred by reason of any brokerage
commission or finder's fee alleged to be payable because of their individual
act or omission or statement.
(b) Other Costs. WHAM, the Shareholders and KEMRON shall each
pay all of their own costs and expenses incurred or to be incurred by it or
them incident to the preparation and carrying out of the transactions herein
contemplated.
(c) Assumption of WHAM Debt. The parties acknowledge that WHAM
currently has total debts and payables outstanding in an aggregate amount of
approximately $105,000.00, all of which is owed to Xxxxxxx X. Xxxxxx, PC, and
Xxxxxxx & Company. In the event that WHAM has failed to pay such outstanding
debts and payables on or before April 10, 0000, XXXXXX hereby agrees to pay
such outstanding debts and payables, without interest or other charge, in an
amount not to exceed $105,000.00. Such payments shall be made as follows:
$75,000.00 Xxxxxxx X. Xxxxxx, PC
30,000.00 Xxxxxxx & Company
The satisfaction of any payables, debts or other obligations of WHAM of
every kind existing at or arising prior to Closing in excess of $105,000.00
shall be the joint and several responsibility of Xxxxxxx X. Xxxxxx, PC, and
Xxxxxxx & Company or, if owed to them, shall be written off by them, and they
shall so agree in writing at Closing.
17. Termination of This Agreement.
(a) This Agreement shall terminate:
(i) By mutual written consent of the WHAM and KEMRON;
(ii) Automatically, without need of action by any party, if the
Closing has not occurred by the Closing date herein provided for or any
extensions agreed to by WHAM and KEMRON;
(iii) By KEMRON or WHAM, if:
(A) all the conditions precedent to its respective obligations
hereunder have not been satisfied or waived prior to the Closing Date, as it
may be accelerated or extended, or if any Shareholder refuses to execute this
Agreement or deliver the KEMRON Shares as herein called for;
(B) any party shall have defaulted or refused to perform in
any material respect under this Agreement, or if WHAM or KEMRON should have
reasonable cause to believe there has been a material representation
concerning, or failure or breach of, any representation or warranty by the
other party, or if it appears that either KEMRON or WHAM has committed any
unlawful acts affecting the other party;
(C) the transactions contemplated in this Agreement and
related agreements have not been consummated on the Closing Date, as it may be
accelerated or extended, OR
(D) either WHAM or KEMRON shall reasonably determine that the
transactions contemplated in this Agreement have become inadvisable by reason
of the institution or threat by any federal, state or municipal governmental
authorities or by other person whatever of a formal investigation or of any
action, suit or proceeding of any kind against either or both parties which in
one party's reasonable belief is material in light of the other party's
business, prospects, properties or financial condition;
(b) Any termination of this Agreement (other than automatic
termination) shall be made in accordance with the above listed grounds and, if
terminated by KEMRON or WHAM, shall be accompanied by a copy of the resolution
of the terminating party's board of directors. Written notice of termination
shall be given to the other party as required in this Agreement as promptly as
is practical under the circumstances. Upon a party's receipt of such
termination notice, this Agreement shall terminate and the transactions herein
contemplated shall be abandoned without further action by the parties.
18. Form of Agreement.
(a) Subject Headings. The subject headings in this Agreement
are included for convenience only, and shall not affect the construction or
interpretation of any of the provisions hereof.
(b) Entire Agreement; Modification. This Agreement and all
exhibits and documents incorporated herein by reference constitutes the entire
agreement between the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations and
understandings of the parties, whether oral or in writing. No supplement,
modification or amendment of this Agreement shall be binding unless executed
in writing by the parties against which asserted.
(c) Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
(d) Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
19. Parties.
(a) Parties in Interest. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their
respective successors and assigns, nor is anything in this Agreement intended
to relieve or discharge the obligation or liability of any third persons to
any party to this Agreement, nor shall any provision give any third persons
any right of subrogation or action over against any party to this Agreement.
(b) Successors and Assigns. This Agreement shall be binding on,
and shall inure to the benefit of, the parties to it and their respective
heirs, legal representatives, successors and assigns; provided, however, that
neither WHAM nor the Shareholders may assign any of its rights or obligations
or duties under this Agreement without the express written consent of the
other party.
20. Remedies.
(a) Remedies Cumulative, etc. No right, power or remedy herein
conferred upon or reserved to any party hereto is intended to be exclusive of
any other right, power or remedy, and every right, power and remedy pursuant
to this Agreement, now or hereafter existing at law or in equity or by statute
or otherwise, shall be cumulative and concurrent, to the extent permitted by
law, and shall be in addition to every other right, power or remedy pursuant
to this Agreement, now or hereafter existing at law or in equity or by statute
or otherwise. The exercise or beginning of the exercise by any party hereto
of any such right, power or remedy shall not preclude the simultaneous or
later exercise of any right, power or remedy.
(b) No Waiver. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar. No waiver shall be binding unless
specifically so titled, and executed in writing by the party making the
waiver. No failure or delay to insist upon the strict performance of any
term, condition, covenant or agreement of this Agreement, or to exercise any
right, power or remedy hereunder or consequent upon a breach hereof, shall
constitute a waiver of any such term, condition, covenant, agreement, right,
power or remedy of any such breach, or preclude the exercise of any such
right, power or remedy at any later time or times.
(c) Specific Performance. The obligations under this Agreement
are unique. If any party should default in its obligations under this
Agreement, the parties hereto acknowledge that it would be impracticable to
measure the resulting damages; accordingly, the non-breaching party in
addition to any other available rights or remedies, may xxx for specific
performance, and the other party waives the defense that a remedy in damages
will be adequate.
(d) Arbitration. Any disputes arising out of this Agreement, or
the performance of duties contemplated by this Agreement shall be resolved
through arbitration in accordance with the rules of the American Arbitration
Association. Any such arbitration shall be conducted at Washington, D.C. Any
awards or decisions resulting from said arbitration shall be final and may be
enforced by any court of competent jurisdiction. If any action is brought for
the enforcement of this Agreement or to recover damages, the successful or
prevailing party or parties shall be entitled to recover reasonable attorney's
fees and other costs incurred in that action, in addition to any other relief
to which it or they may be entitled.
21. Survival. All representations, warranties, covenants and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion or other writing provided for in it, shall survive any
investigation made by either party and shall survive the Closing subject to
the provisions of Paragraphs 6 and 7 hereof.
22. Notices. All notices, request, instruction or other document to
be given hereunder by a party shall be in writing and delivered personally or
by facsimile transmission, or by electronic mail, or sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
If to KEMRON: KEMRON ENVIRONMENTAL SERVICES, INC.
0000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
If to WHAM: WHITNEY AMERICAN CORPORATION
00000 X. Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
23. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
WHEREFORE, the premises considered, the parties herein have executed the
foregoing Agreement, intending to be so bound, on the day first above written.
WHITNEY AMERICAN CORPORATION
A Delaware corporation
By:
Xxxxxxx X. Xxxxxx
Its: COB, CEO
KEMRON ENVIRONMENTAL SERVICES, INC.
By:
Xxxx X. Xxxxxxxxx
Its: COB/CEO
SHAREHOLDERS
------------------------------------------------
Xxxx X. Xxxxxxxxx, Xxxxx Xxxxxxxxx
-------------------------
InterAmerica Technologies, Inc.
-------------------------
By: Xxxxx X. Xxx, Xxxxxxx Xxxxxx
--------------------------------------------------
Xxxx X. Xxxxx, Xxxxx X. Xxx
------------------------------------------------
Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxxx
Exhibit A
Name No. Of KEMRON Shares No. Of WHAM Shares
Xxxx X. Xxxxxxxxx 200 2,222,223
InterAmerica Technologies, Inc. 79 877,778
Xxxx Xxxxx 15 166,666
Xxxxx Xxxxxxxxxx 15 166,666
Xxxxx Xxxxxxxxx 4 44,444
Xxxxxxx Xxxxxx 1 11,111
Xxxxx Xxx & half; 5,556
Xxxxx Xxxxxxxxx & half; 5,556
-------------------- ------------------
TOTAL 315 3,500,000