AGREEMENT AND PLAN OF MERGER by and among GLOBAL CONDIMENTS, INC. SPL AQUISITION CORP. and SOUTHPORTLANE INC. December 31, 2013

EX-2.1 2 v364871_ex2-1.htm FORM 2.1

 

 

AGREEMENT AND PLAN OF MERGER

 

by and among

 

GLOBAL CONDIMENTS, INC.

 

SPL AQUISITION CORP.

 

and

 

SOUTHPORT LANE INC.

 

December 31, 2013

 

 

 

 

 

 

 

AGREEMENT AND PLAN OF MERGER

 

THIS AGREEMENT AND PLAN OF MERGER is entered into as of December 31, 2013 by and among GLOBAL CONDIMENTS, INC., a Nevada corporation (“Parent”), SPL AQUISITION CORP., a Delaware corporation and a wholly-owned subsidiary of Parent (“Acquisition Corp.”), and SOUTHPORT LANE, INC., a Delaware corporation (the “Company”).

 

W I T N E S S E T H:

 

WHEREAS, the respective Boards of Directors of each of Parent, Acquisition Corp. and the Company have approved, and deem it advisable and in the best interests of their respective stockholders to consummate the acquisition of the Company by Parent, which acquisition is to be effected by the merger of the Company with and into the Acquisition Corp., with the Acquisition Corp. being the surviving entity (the “Merger”), upon the terms and subject to the conditions set forth in this Agreement (as defined herein); and

 

WHEREAS, the parties hereto intend that the Merger shall qualify as a reorganization within the meaning of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), by reason of Section 368(a)(2)(E) of the Code;

 

NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I
DEFINITIONS

 

Section 1.1 Definitions. Capitalized terms used in this Agreement shall have the following meanings:

 

“Acquisition Corp.” shall have the meaning given to such term in the preamble to this Agreement.

 

“Acquisition Proposal” shall have the meaning given to such term in Article VI hereof.

 

“Action” shall mean any claim, action, suit, proceeding, investigation or order.

 

“Affiliate” shall mean, with respect to any Person, any Person directly or indirectly controlling, controlled by or under common control with, such Person. For the purposes of this definition, “control” (including, with correlative meaning, the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of such Person through the ownership of voting securities, by contract or otherwise.

 

“Agreement” shall mean this Agreement and Plan of Merger, including the exhibits attached hereto or referred to herein, as the same may be amended or modified from time to time in accordance with the provisions hereof.

 

 

 

“Certificate of Incorporation” shall have the meaning given to such term in Section 2.3(a) hereof.

 

“Closing” shall have the meaning given to such term in Section 2.5 hereof.

 

“Closing Date” shall have the meaning given to such term in Section 2.5 hereof.

 

“Code” shall have the meaning given to such term in the second recital to this Agreement.

 

“Commission” shall mean the United States Securities and Exchange Commission.

 

“Company” shall have the meaning given to such term in the preamble to this Agreement.

 

“Company By-laws” shall have the meaning given to such term in Section 2.3(b) hereof.

 

“Company Common Stock” shall mean the common stock, par value $0.001, of the Company.

 

“Company Material Adverse Effect” shall mean any change, effect or circumstance that is materially adverse or would be reasonably expected to be materially adverse to the business, assets, liabilities, condition (financial or otherwise) or operations of the Company and its subsidiaries, taken as a whole, other than any such change, effect or circumstance relating to general economic, regulatory or political conditions that does not disproportionately affect the Company and its subsidiaries, taken as a whole.

 

“Company Stockholder” shall mean any record holder of Company Common Stock.

 

“Contract” shall have the meaning given to such term in Section 4.4 hereof.

 

“Consents” shall mean any permits, filings, notices, licenses, consents, authorizations, accreditation, waivers, approvals and the like of, to, with or by any Person.

 

“Convertible Securities” shall mean any debt or equity securities, options, warrants, rights or other agreements or instruments convertible, exchangeable or exercisable into common or preferred stock or equity securities.

 

“DGCL” shall mean the Delaware General Corporation Law, as amended.

 

“Effective Time” shall have the meaning given to such term in Section 2.2 hereof.

 

“Employee Benefit Plans” shall have the meaning assigned to it in Section 4.12 hereof.

 

“Environmental Law” shall mean the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec.Sec. 9601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sec.Sec. 11001 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Sec.Sec. 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. Sec.Sec. 2601 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sec.Sec. 136 et seq. and comparable state statutes dealing with the registration, labeling and use of pesticides and herbicides; the Clean Air Act, 42 U.S.C. Sec.Sec. 7401 et seq.; the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. Sec.Sec. 1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. Sec.Sec. 300f et seq.; and the Hazardous Materials Transportation Act, 49 U.S.C. Sec.Sec. 1801 et seq., as any of the above referenced statutes have been amended as of the date hereof, all rules, regulations and policies promulgated pursuant to any of the above referenced statutes, and any other foreign, federal, state or local law, statute, ordinance, rule, regulation or policy governing environmental matters, as the same have been amended as of the date hereof.

 

  

“ERISA” shall mean the Employee Retirement Income Securities Act of 1974, as amended, and the rules and regulations issued thereunder.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations issued thereunder.

 

“Federal Securities Laws” means the Securities Act and the Exchange Act.

 

“GAAP” shall mean generally accepted accounting principles as in effect from time to time in the United States consistently applied.

 

“Hazardous Material” means any substance or material meeting any one or more of the following criteria: (a) it is or contains a substance designated as or meeting the characteristics of a hazardous waste, hazardous substance, hazardous material, pollutant, chemical substance or mixture, contaminant or toxic substance under any Environmental Law; (b) its presence at some quantity requires investigation, notification or remediation under any Environmental Law; (c) it contains, without limiting the foregoing, asbestos, polychlorinated biphenyls, petroleum hydrocarbons, petroleum derived substances or waste, pesticides, herbicides, crude oil or any constituent thereof, nuclear fuel, natural gas or synthetic gas; or (d) mold.

 

“HFO” means Herlocher Foods Online, L.L.C., a Pennsylvania limited liability company and a wholly-owned subsidiary of Parent.

 

“Indebtedness” shall mean (i) any obligation of the Company that under GAAP is required to be shown on the Balance Sheet of the Company as a Liability or (ii) any obligation secured by a Lien on, or payable out of the proceeds of production from, assets or property of the Company whether or not such obligation is assumed by the Company.

 

“Investment Company Act” shall mean the Investment Company Act of 1940, as amended, and the rules and regulations issued thereunder.

 

“Liability” shall mean any and all liability, debt, obligation, deficiency, Tax, penalty, fine, claim, cause of action or other loss, cost or expense of any kind or nature whatsoever, whether asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, whether due or to become due and regardless of when asserted.

 

“Lien” shall mean any mortgage, pledge, security interest, encumbrance, lien or charge of any kind, including, without limitation, any conditional sale or other title retention agreement, any lease in the nature thereof and the filing of or agreement to file or permit the filing of any financing statement under the Uniform Commercial Code of any jurisdiction and including any lien or charge arising by statute or other law.

 

  

“Merger” shall have the meaning given to such term in the second recital to this Agreement.

 

“NRS” shall mean the Nevada Revised Statutes, as amended.

 

“Parent” shall have the meaning given to such term in the preamble to this Agreement.

 

“Parent Balance Sheet” shall have the meaning assigned to such term in Section 5.13 hereof.

 

“Parent Balance Sheet Date” shall have the meaning assigned to it in Section 5.13 hereof.

 

“Parent Common Stock” shall mean the common stock, par value $0.001 per share, of Parent.

 

“Parent Employee Benefit Plans” shall have the meaning assigned to such term in Section 5.16 hereof.

 

“Parent Financial Statements” shall have the meaning assigned to such term in Section 5.12 hereof.

 

“Parent Material Adverse Effect” means any change, effect or circumstance that is materially adverse or would reasonably be expected to be materially adverse to the business, assets, liabilities, condition (financial or otherwise) or operations of Parent and its subsidiaries, taken as a whole, other than any such change, effect or circumstance relating to general economic, regulatory or political conditions that does not disproportionately affect Parent and its subsidiaries, taken as a whole.

 

“Parent SEC Documents” shall have the meaning assigned to such term in Section 5.10 hereof.

 

“Permitted Liens” shall mean (a) Liens for taxes and assessments or governmental charges or levies not at the time due or in respect of which the validity thereof shall currently be contested in good faith by appropriate proceedings; and (b) Liens in respect of pledges or deposits under workmen’s compensation laws or similar legislation, carriers’, warehousemen’s, mechanics’, laborers’ and materialmens’ and similar Liens, if the obligations secured by such Liens are not then delinquent or are being contested in good faith by appropriate proceedings.

 

“Person” shall mean any individual, corporation, limited liability company, partnership, joint venture, trust or other entity or organization, including any government or political subdivision or an agency or instrumentality thereof.

 

  

“SEC” means the United States Securities and Exchange Commission and any successor entity.

 

“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations issued thereunder.

 

“Surviving Corporation” shall have the meaning given to such term in Section 2.1 hereof.

 

“Tax” or “Taxes” shall mean (a) any and all taxes, assessments, customs, duties, levies, fees, tariffs, imposts, deficiencies and other governmental charges of any kind whatsoever (including, but not limited to, taxes on or with respect to net or gross income, franchise, profits, gross receipts, capital, sales, use, ad valorem, value added, transfer, real property transfer, transfer gains, transfer taxes, inventory, capital stock, license, payroll, employment, social security, unemployment, severance, occupation, real or personal property, estimated taxes, rent, excise, occupancy, recordation, bulk transfer, intangibles, alternative minimum, doing business, withholding and stamp), together with any interest thereon, penalties, fines, damages costs, fees, additions to tax or additional amounts with respect thereto, imposed by the United States (federal, state or local) or other applicable jurisdiction; (b) any liability for the payment of any amounts described in clause (a) as a result of being a member of an affiliated, consolidated, combined, unitary or similar group or as a result of transferor or successor liability, including, without limitation, by reason of Code Section 1.1502-6; and (c) any liability for the payments of any amounts as a result of being a party to any Tax Sharing Agreement or as a result of any express or implied obligation to indemnify any other Person with respect to the payment of any amounts of the type described in either clause (a) or (b).

 

“Tax Return” shall include all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns (including Form 1099 and partnership returns filed on Form 1065)) required to be supplied to a Tax authority relating to Taxes.

 

“Tax Sharing Agreements” shall have the meaning given to such term in Section 4.11 hereof.

 

ARTICLE II
THE MERGER

 

Section 2.1 Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, the Company shall be merged with and into Acquisition Corp. in accordance with the DGCL. Following the Effective Time, the separate corporate existence of the Acquisition Corp. shall cease, and the Company shall continue as the corporation surviving the Merger (sometimes hereinafter referred to as the “Surviving Corporation”).

 

Section 2.2 Effective Time. The Parent, the Company and Acquisition Corp. shall cause a certificate of merger to be filed on the Closing Date (or on such other date as the Company and Parent may agree in writing) with the Secretary of State of the State of Delaware as provided in the DGCL, and shall make all other filings or recordings required by the DGCL in connection with the Merger. The Merger shall become effective by designation in the certificate of merger on January 1, 2014 by filing in accordance with the DGCL and the Secretary of State of Delaware or such later time as otherwise specified in the certificate of merger, and such time is hereinafter referred to as the “Effective Time.”

 

  

Section 2.3 Certificate of Incorporation; By-laws; Directors and Officers.

 

(a) The Certificate of Incorporation of the Company as in effect immediately prior to the Effective Time, a copy of which is attached as Exhibit A hereto, shall be the Certificate of Incorporation of the Surviving Corporation (the “Certificate of Incorporation”) from and after the Effective Time until thereafter changed or amended as provide therein or in accordance with applicable law.

 

(b) The by-laws of the Company as in effect immediately prior to the Effective Time, a copy of which is attached as Exhibit B hereto, shall be the by-laws of the Surviving Corporation (the “Company By-laws”) from and after the Effective Time until thereafter changed or amended as provided therein or in accordance with applicable law.

 

(c) The directors of the Company immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation and shall hold office from the Effective Time until their respective successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of Incorporation and Company By-laws. The officers of the Company immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation and shall hold office from the Effective Time until their respective successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of Incorporation and Company By-laws.

 

(d) At the Closing (as defined below), the officers and directors of the Parent designated on Exhibit C hereto shall submit their written resignations, each such resignation to be effective at and as of the Effective Time, to be replaced by the officers and directors designated on Exhibit C hereto, who shall take such offices immediately or, if required, upon compliance with the Federal Securities Laws, as the case may be. The appointment of new directors to replace the directors who have resigned in accordance with the terms of this Section 2.3(d) shall be accomplished through the filling of vacancies in the Board of Directors of the Parent in compliance with the applicable provisions of Nevada law and the by-laws of the Parent and without the vote (by written consent or otherwise) of the stockholders of the Parent.

 

Section 2.4 Effects of the Merger. The Merger shall have the effects set forth in the DGCL. Without limiting the generality of the foregoing, at the Effective Time, except as otherwise provided herein, all of the property, rights, privileges, powers and franchises of the Company and Acquisition Corp. shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Acquisition Corp. shall become the debts, liabilities and duties of the Surviving Corporation. The Company acknowledges that, from and after the Effective Time, Parent shall have the absolute and unqualified right to deal with the assets and business of the Surviving Corporation as its own property without limitation on the disposition or use of such assets or the conduct of such business.

 

  

Section 2.5 Closing. The consummation of the transactions contemplated by this Agreement, including the Merger (the “Closing”), shall take place: (a) at the offices of Cane Clark LLP, 3273 E. Warm Springs Rd., Las Vegas, NV at 10:00 a.m. local time on the date on which all of the conditions to the Closing set forth in Article VIII hereof shall be fulfilled or waived in accordance with this Agreement (other than conditions that can be satisfied only at the Closing, but subject to the fulfillment or waiver of those conditions at the Closing); or (b) at such other place, time and date as the Company and Parent may agree in writing (the “Closing Date”).

 

Section 2.6 Tax-Free Merger. The parties hereto intend that the Merger will be treated as a tax-free reorganization under Section 368 of the Code.

 

ARTICLE III
MERGER CONSIDERATION; CONVERSION AND EXCHANGE OF SECURITIES

 

Section 3.1 Manner and Basis of Converting and Exchanging Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent or Acquisition Corp. or the holders of any outstanding shares of capital stock or other securities of the Company, Parent or Acquisition Corp., the following shall occur:

 

(a) Acquisition Corp. Stock. Each share of common stock, par value $0.001 per share, of Acquisition Corp. issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and non-assessable share of capital stock, $0.001 par value per share, of the Surviving Corporation, such that Parent shall be the holder of all of the issued and outstanding shares of capital stock of the Surviving Corporation following the Merger.

 

(b) Company Common Stock. All of the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into an aggregate of 48,868,264 shares of Parent Common Stock to be issued pro rata to the holders of Company Common Stock.

 

(c) No Fractional Shares. No fractional shares of Parent Common Stock shall be issued in, or as a result of, the Merger. If a fractional share of Parent Common Stock would be issuable to a holder of record of Company Common Stock as a result of the Merger, the number of shares of Parent Company Stock required to be issued to such record holder shall be rounded up to the next whole number of shares.

 

Section 3.2 Surrender and Exchange of Certificates.

 

(a) Delivery of Certificates. At the Closing, (A) Parent shall deliver to each record holder of Company Common Stock that was converted into the right to receive Parent Common Stock pursuant to Section 3.1 hereof a certificate representing the number of shares of Parent Common Stock to which such record holder is entitled to receive pursuant to Section 3.1, duly registered in the name of such record holder or such holder’s designee and (B) each record holder of Company Common Stock shall deliver to Parent one or more certificate(s) formerly representing ownership of Company Common Stock, endorsed in blank or accompanied by duly executed stock powers (or an affidavit of lost certificate and indemnification in form and substance reasonably acceptable to Parent stating that, among other things, the former record holder has lost such holder’s certificate(s) or that such certificate(s) have been destroyed). Each share of Company Common Stock shall be deemed at and after the Effective Time to have been converted into Parent Common Stock in accordance with Section 3.1 and the former record holders thereof shall cease to have any other rights with respect to such holder’s Company Common Stock.

 

  

(b) Stock Transfer Books. At the Effective Time, the stock transfer books of the Company will be closed and no further registration of transfers of shares of Company Common Stock will thereafter be recorded on the books of the Company.

 

(c) Further Rights in Company Stock. All shares of Parent Common Stock issued upon exchange of shares of Company Common Stock in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of Company Common Stock.

 

Section 3.3 Convertible Securities.

 

(a) The Company represents and warrants to, and agrees with, the Parent that, as of the date of this Agreement and as of the Effective Time, other than 34,000 shares of its Series A 10% Convertible Preferred Stock and 1,000,000 shares of its Series B Super Voting Preferred Stock, no Convertible Securities relating to the Company Common Stock are outstanding.

 

(b) The Parent represents and warrants to, and agrees with, the Company that, as of the date of this Agreement and as of the Effective Time, no Convertible Securities are outstanding or shall be issued by the Parent or the Acquisition Corp.

 

Section 3.4 Parent Common Stock. Parent shall reserve and maintain through the Effective Time a sufficient number of shares of Parent Common Stock to complete the conversion in full of Company Common Stock into Parent Common Stock pursuant to Sections 3.1 and 3.2 hereof. Parent covenants and agrees that, as of the date of this Agreement and at all times prior to the Effective Time, (A) there will be 7,581,736 shares of Parent Common Stock issued and outstanding (the “Outstanding Shares”), (B) the number of shares of Parent Common Stock authorized for issuance by Parent pursuant to its Articles of Incorporation will be 50,000,000, and (C) other than the Outstanding Shares, no other common or preferred stock or other equity securities of the Parent, or any Convertible Securities of the Parent, shall be issued or outstanding at any time prior to the Effective Time.

 

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

The Company hereby represents and warrants to Parent, as of the date of this Agreement and as of the Effective Time, as follows:

 

Section 4.1 Organization. The Company (i) is duly organized, validly existing and in good standing (or its equivalent) under the laws of the State of Delaware, (ii) has all licenses, permits, authorizations and other Consents necessary to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and (iii) has all requisite corporate or other applicable power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and presently proposed to be conducted, except where such failure would not have, or be reasonably likely to have, a Company Material Adverse Effect. The Company is duly qualified or authorized to conduct business and is in good standing (or its equivalent) as a foreign corporation or other entity in all jurisdictions in which the ownership or use of its assets or nature of the business conducted by it makes such qualification or authorization necessary, except where the failure to be so duly qualified, authorized and in good standing would not have a Company Material Adverse Effect.

 

  

Section 4.2 Authorization; Validity of Agreement. The Company has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the Board of Directors of the Company and no other action (except for any approval of its Stockholders that may be required solely with respect to consummation of the Merger) on the part of the Company or any of its Stockholders or subsidiaries is necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and (assuming due and valid authorization, execution and delivery hereof by Parent and Acquisition Corp.) is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforcement is limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

 

Section 4.3 Company Common Stock. The Company’s capital currently consists of 15,000,000 shares of common stock, $0.001 par value per share of which 100 shares are issued and outstanding, and 5,000,000 shares of preferred stock $0.001 par value per share of which 34,000 shares have been designated Series A 10% Convertible Preferred Stock with a stated value of $1,000 per share, and 1,000,000 shares have been designated Series B Super-Voting Preferred Stock with a stated value of $1.00 per share. All outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid and non-assessable.

 

Section 4.4 Consents and Approvals; No Violations. Except for (a) any approval of the Merger by the Company Stockholders that may be required and (b) filing of a certificate of merger with the Secretary of State of the State of Delaware, neither the execution, delivery or performance of this Agreement by the Company nor the consummation of the transactions contemplated hereby will (i) violate any provision of its Certificate of Incorporation or the Company By-laws; (ii) violate, conflict with or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, require the consent of or result in the creation of any encumbrance upon any of the properties of the Company or any of its subsidiaries under any material note, bond, mortgage, indenture, deed of trust, license, franchise, permit, lease, contract, agreement or other instrument (collectively, “Contract”) to which the Company or any its subsidiaries or any of their respective properties may be bound; (iii) require any Consent, approval or authorization of, or notice to, or declaration, filing or registration with, any governmental entity by or with respect to the Company or any of its subsidiaries; or (iv) violate any order, writ, judgment, injunction, decree, law, statute, rule or regulation applicable to the Company or any of its subsidiaries or any of their respective properties or assets; except, in the cases of clauses (ii), (iii) and (iv), any such violations, conflicts, breaches, defaults or encumbrances, or any failure to receive any such Consent, approval or authorization, or to make any such notice, declaration, filing or registration as will not result in, or could reasonably be expected to result in, a Company Material Adverse Effect.

 

  

Section 4.5 Financial Statements. The Company has delivered to Parent: (a) draft consolidated balance sheets of the Company’s two subsidiaries Southport Lane Securities LLC as of December 15, 2013 and Southport Lane Advisors as of June 30, 2013 (collectively the “Company Balance Sheet”), as attached hereto in Exhibit D. The Company Balance Sheet (i) has been prepared based upon the books and records of the Company, (ii) has been prepared in accordance with GAAP (except as otherwise noted therein), and (iii) presents fairly, in all material respects, the financial position of the Company as of the dates represented thereon (the “Company Balance Sheet Date”). To the knowledge of the Company, since the Company Balance Sheet Date, no fact or condition exists that has not been disclosed to Parent that has had or could reasonably be expected to have a Company Material Adverse Effect.

 

Section 4.6 No Undisclosed Liabilities. The Company has no Liabilities except for (a) Liabilities reflected on the Company Balance Sheet, and (b) Liabilities of the same type, magnitude and scope as those reflected on the Company Balance Sheet which have arisen since the Company Balance Sheet Date in the ordinary course of business, and which would not, in the aggregate, result in a Company Material Adverse Effect.

 

Section 4.7 Litigation. There is no Action involving the Company or its subsidiaries or affecting any of the officers, directors or employees of the Company or its subsidiaries with respect to the Company’s or any subsidiary’s business pending that has had or could reasonably be expected to have a Company Material Adverse Effect and neither the Company nor any of its subsidiaries have received written notice that any such Action is threatened. Neither the Company nor any of its subsidiaries is in default under any judgment, order or decree of any governmental entity applicable to its business, which default could reasonably be expected to have a Company Material Adverse Effect.

 

Section 4.8 No Default; Compliance with Applicable Laws. The Company is not in default or violation of any material term, condition or provision of (i) its Certificate of Incorporation or the Company By-laws or (ii) to the Company’s knowledge, any law applicable to the Company or its property and assets, and the Company has not received written notice of any violation of or Liability under any of the foregoing (whether material or not).

 

Section 4.9 Broker’s and Finder’s Fees. To the knowledge of the Company, no Person has, or as a result of the transactions contemplated or described herein will have, any right or valid claim against the Company for any commission, fee or other compensation as a finder or broker, or in any similar capacity in connection with such transactions.

 

Section 4.10 Contracts.

 

(a) The Company is not in violation or breach of any material Contract, except such violations that, in the aggregate, would not result in, or would not reasonably be expected to result in, a Company Material Adverse Effect. There does not exist any event or condition that, after notice or lapse of time or both, would constitute an event of default or breach under any material Contract on the part of the Company or, to the knowledge of the Company, any other party thereto or would permit the modification, cancellation or termination of any material Contract or result in the creation of any lien upon, or any person acquiring any right to acquire, any assets of the Company, other than any events or conditions that, in the aggregate would not result in, or would not reasonably be expected to result in, a Company Material Adverse Effect. The Company has not received in writing any claim or threat that the Company has breached any of the terms and conditions of any material Contract, other than any material Contracts the breach of which, in the aggregate, would not result in, or would not reasonably be expected to result in, a Company Material Adverse Effect.

 

  

(b) No consent of, or any delivery of notice to or filing with, any party to a material Contract is required for the execution and delivery by the Company of this Agreement or the consummation of the transactions contemplated under the Agreement.

 

Section 4.11 Tax Returns and Audits. All required federal, state and local Tax Returns of the Company have been accurately prepared and duly and timely filed, and all federal, state and local Taxes required to be paid with respect to the periods covered by such returns have been paid. The Company is not and has not been delinquent in the payment of any Tax. The Company has not had a Tax deficiency proposed or assessed against it and has not executed a waiver of any statute of limitations on the assessment or collection of any Tax. None of the Company’s federal income Tax Returns nor any state or local income or franchise Tax Returns has been audited by governmental authorities. The Company is not a party to, is not bound by and does not have any obligation under, any Tax sharing agreement, Tax indemnification agreement or similar contract or arrangement, whether written or unwritten (collectively, “Tax Sharing Agreements”), nor does it have any potential liability or obligation to any Person as a result of, or pursuant to, any Tax Sharing Agreements.

 

Section 4.12 Employee Benefit Plans; ERISA.

 

(a) All “employee benefit plans” (within the meaning of Section 3(3) of the ERISA) of the Company and other employee benefit or fringe benefit arrangements, practices, contracts, policies or programs of every type, other than programs merely involving the regular payment of wages, commissions, or bonuses established, maintained or contributed to by the Company, whether written or unwritten and whether or not funded (collectively, “Employee Benefit Plans”), are in material compliance with the applicable requirements of ERISA, the Code and any other applicable state, federal or foreign law.

 

(b) There are no pending claims or lawsuits that have been asserted or instituted against any Employee Benefit Plan, the assets of any of the trusts or funds under the Employee Benefit Plans, the plan sponsor or the plan administrator of any of the Employee Benefit Plans or against any fiduciary of an Employee Benefit Plan with respect to the operation of such plan, nor does the Company have any knowledge of any incident, transaction, occurrence or circumstance which might reasonably be expected to form the basis of any such claim or lawsuit.

 

  

(c) There is no pending or, to the knowledge of the Company, threatened investigation, or pending or possible enforcement action by the Pension Benefit Guaranty Corporation, the Department of Labor, the Internal Revenue Service or any other government agency with respect to any Employee Benefit Plan and the Company has no knowledge of any incident, transaction, occurrence or circumstance which might reasonably be expected to trigger such an investigation or enforcement action.

 

(d) No actual or, to the knowledge of the Company, contingent Liability exists with respect to the funding of any Employee Benefit Plan or for any other expense or obligation of any Employee Benefit Plan, except as disclosed on the Balance Sheet, and no contingent Liability exists under ERISA with respect to any “multi-employer plan,” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.

 

(e) No events have occurred or are reasonably expected to occur with respect to any Employee Benefit Plan that would cause a material change in the costs of providing benefits under such Employee Benefit Plan or would cause a material change in the cost of providing such Employee Benefit Plan.

 

Section 4.13 Title to Property and Encumbrances. The Company has good and valid title to all properties and assets used in the conduct of its business (except for property held under valid and subsisting leases which are in full force and effect and which are not in default) free of all Liens except Permitted Liens and such ordinary and customary imperfections of title, restrictions and encumbrances as do not in the aggregate constitute a Company Material Adverse Effect.

 

Section 4.14 Insurance Coverage. There is in full force and effect one or more policies of insurance insuring the Company and its properties, products and business against such losses and risks, and in such amounts, as are customary for corporations of established reputation engaged in the same or similar business and similarly situated.

 

Section 4.15 Environmental Matters. The Company has never generated, used, handled, treated, released, stored or disposed of any Hazardous Materials on any real property on which it now has or previously had any leasehold or ownership interest, except in compliance with all applicable Environmental Laws.

 

Section 4.16 Disclosure. There is no fact relating to the Company that the Company has not disclosed to Parent in writing that has had or is currently having a Company Material Adverse Effect. No representation or warranty by the Company herein and no information disclosed in the exhibits hereto by the Company contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading.

 

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION CORP.

 

Parent and Acquisition Corp. hereby represent and warrant, jointly and severally, to, and agree with, the Company, as of the date of this Agreement and as of the Effective Date, as follows:

 

  

Section 5.1 Organization. Each of Parent and Acquisition Corp. (i) is duly organized, validly existing and in good standing under the laws of its State of incorporation or organization, (ii) has all licenses, permits, authorizations and other Consents necessary to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and (iii) has all requisite corporate or other applicable power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted and presently proposed to be conducted, in each case except where such failures have not had, or would not reasonably be expected to have, a Parent Material Adverse Effect. Each of Parent and Acquisition Corp. is duly qualified or authorized to conduct business and is in good standing (or its equivalent) as a foreign corporation or other entity in all jurisdictions in which the ownership or use of its assets or nature of the business conducted by it makes such qualification or authorization necessary, except where the failure to be so duly qualified, authorized and in good standing has not had, or would not reasonably be expected to have, a Parent Material Adverse Effect.

 

Section 5.2 Authorization; Validity of Agreement. Each of Parent and Acquisition Corp. has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by each of Parent and Acquisition Corp. of this Agreement and all other agreements and instruments to be executed pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by the board of directors of each of Parent and Acquisition Corp. and the stockholder of Acquisition Corp., and no other action on the part of either of Parent or Acquisition Corp. is necessary to authorize the execution and delivery of this Agreement and all other agreements and instruments to be executed pursuant to this Agreement and the consummation by either of Parent or Acquisition Corp. of the transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered by the Parent and Acquisition Corp. and (assuming due and valid authorization, execution and delivery hereof by the Company) is a valid and binding obligation of each of Parent and Acquisition Corp., enforceable against each of them in accordance with its terms, except as such enforcement is limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

 

Section 5.3 Consents and Approvals; No Violations. Except for filing of the certificate of merger with the Secretary of State of the State of Delaware, neither the execution, delivery or performance of this Agreement by Parent or Acquisition Corp. nor the consummation of the transactions contemplated hereby will (i) violate any provision of the charter or by-laws of Parent or Acquisition Corp.; (ii) violate, conflict with or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, require the consent of any party to or result in the creation of any Lien upon any of the properties of Parent or Acquisition Corp. under any Contract to which Parent or Acquisition Corp. or any of their properties or subsidiaries may be bound; (iii) require any Consent, approval or authorization of, or notice to, or declaration, filing or registration with, any governmental entity by or with respect to Parent or any subsidiary of Parent; or (iv) violate any order, writ, judgment, injunction, decree, law, statute, rule or regulation applicable to any of Parent or Acquisition Corp. or any of their respective properties, assets or subsidiaries.

 

  

Section 5.4 Litigation. There is no Action involving Parent or Acquisition Corp. or any subsidiary of Parent or affecting the officers, directors or employees of Parent or Acquisition Corp. or any subsidiary of Parent with respect to their respective businesses pending and none of Parent, Acquisition Corp. or any subsidiary of Parent has received notice or has any knowledge that any such Action is threatened. None of Parent, Acquisition Corp. nor any subsidiary of Parent is in default under any judgment, order or decree of any governmental entity applicable to its business.

 

Section 5.5 No Default; Compliance with Applicable Laws. Neither Parent nor any of Parent’s subsidiaries is in default or violation of any material term, condition or provision of (i) their respective charter, by-laws or similar organizational documents or (ii) any law applicable to Parent or any of Parent’s subsidiaries or its or their respective property or assets and neither Parent nor any of Parent’s subsidiaries has received notice or has any knowledge of any violation of or Liability under any of the foregoing (whether material or not).

 

Section 5.6 Broker’s and Finder’s Fees. No Person or other entity is entitled by reason of any act or omission of Parent or Acquisition Corp. to any broker’s or finder’s fees, commission or other similar compensation of with respect to the execution, delivery and performance of this Agreement or with respect to the consummation of the transactions contemplated hereby nor will any such person have any right or valid claim against the Company, Parent or Acquisition Corp. with respect to any such payment.

 

Section 5.7 Capitalization of Parent. The authorized capital stock of Parent consists of 50,000,000 shares of Parent Common Stock and 20,000,000 shares of preferred stock. There are 7,581,736 shares of Parent Common Stock, par value $0.001, issued and outstanding and no shares of preferred stock issued and outstanding. Other than as provided in Article III of this Agreement in connection with securities to be issued or to become issuable in connection with or as a result of the Merger, Parent has no outstanding Convertible Securities or other rights obligating it to issue shares of Parent Common Stock or any capital stock or other securities of Parent or Acquisition Corp., and there are no outstanding Convertible Securities of Parent Common Stock or any capital stock or other securities of Parent or Acquisition Corp. There is no voting trust, agreement or arrangement among any of the beneficial holders of Parent Common Stock affecting the nomination or election of directors or the exercise of the voting rights of Parent Common Stock. There are no registration rights or similar rights applicable to any shares of Parent Common Stock or any capital stock or other securities of Parent or Acquisition Corp. All outstanding shares of the capital stock of Parent are validly issued and outstanding, fully paid and non-assessable, and none of such shares have been issued in violation of the preemptive rights of any person. All of the shares of Parent Common Stock issued and outstanding immediately prior to the Effective Time have been issued in compliance with the Securities Act and applicable state securities laws and (i) pursuant to effective registration statements filed with the Commission and/or (ii) in reliance on valid exemptions from registration or qualification thereunder.

 

Section 5.8 Subsidiaries. Except for Acquisition Corp. and HFO, Parent has no subsidiaries. Acquisition Corp. is a Delaware corporation and a wholly-owned subsidiary of Parent that was formed on December 27, 2013 specifically for the purpose of the Merger and that has not conducted any business or acquired any property, and will not conduct any business or acquire any property prior to the Closing Date, except in preparation for and otherwise in connection with the transactions contemplated by this Agreement. HFO is a limited liability company incorporated under the laws of the Commonwealth of Pennsylvania and a wholly-owned subsidiary of Parent. Parent owns all of the issued and outstanding capital stock of Acquisition Corp and HFO. Neither Acquisition Corp. nor HFO have any subsidiaries.

 

  

Section 5.9 Validity of Shares. The shares of Parent Common Stock to be issued in accordance with Article III hereof, when issued and delivered in accordance with the terms hereof, shall be duly authorized, validly issued, fully paid and non-assessable.

 

Section 5.10 SEC Reporting and Compliance.

 

(a) Parent filed a registration statement on Form S-1 under the Securities Act which became effective on January 11, 2010, and an amendment on Form S-1/A which was filed on April 12, 2010 and which became effective on July 8, 2010. Since that date, Parent has timely filed with the Commission all registration statements, proxy statements, information statements and periodic and other reports required to be filed by Parent pursuant to the Exchange Act (collectively, the “Parent SEC Documents”) (other than the March 2013 10Q which was filed late). Parent has not filed with the Commission a Form 15 pursuant to the Exchange Act.

 

(b) None of the Parent SEC Documents, as of their respective dates, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained therein not misleading. Each of the Parent SEC Documents complied, and each Parent SEC Document to be filed with the Commission prior to the Effective Time shall comply, in all material respects, with the applicable requirements of the Securities Act and the Exchange Act, as the case may be. Each of the financial statements (including, in each case, any related notes), contained in the Parent SEC Documents, including any Parent SEC Documents filed after the date of this Agreement until the Effective Time, complied, as of its filing date, in all material respects with all applicable accounting requirements and the published rules and regulations of the Commission with respect thereto.

 

(c) No event or circumstance has occurred with respect to which Parent would be required to file any report on Form 8-K for which Parent has failed to file such report. Until the Effective Time, Parent will provide to the Company copies of any and all Parent SEC Documents, any registration statements, information statements, proxy statements, reports or notices, of this and all amendments or supplements thereto, that it plans or intends to file with the Commission or deliver to the stockholders of Parent, prior to making any such filing or delivery, and will not file or deliver any such document in the event that the Company reasonably objects thereto.

 

(d) Parent is not an “investment company” within the meaning of Section 3 of the Investment Company Act.

 

(e) The Parent Common Stock is presently eligible for quotation and trading on the NASDAQ Over-the-Counter Bulletin Board and is DTC eligible.

 

  

(f) Between the date hereof and the Effective Time, Parent shall continue to satisfy any applicable filing requirements of the Exchange Act or the Securities Act, as the case may be, and all other requirements of applicable securities laws.

 

(g) Parent has complied in all material respects with the Securities Act, Exchange Act and all other applicable federal and state securities laws.

 

Section 5.11 No General Solicitation. In issuing Parent Common Stock in the Merger hereunder, neither Parent nor anyone acting on its behalf has offered to sell Parent Common Stock by any form of general solicitation or advertising.

 

Section 5.12 Financial Statements. The financial statements contained in the Parent SEC Documents (the “Parent Financial Statements”) (i) have been prepared in accordance with GAAP, (ii) are consistent in all material respects with the books and records of the Parent, and (iii) present fairly in all material respects the financial condition of the Parent at the dates therein specified and the results of its operations and changes in financial position for the periods therein specified.

 

Section 5.13 Absence of Undisclosed Liabilities. Neither Parent nor Acquisition Corp. has any Liability, except (a) as disclosed in the Parent SEC Documents, (b) to the extent set forth on or reserved against in the consolidated balance sheet of Parent (the “Parent Balance Sheet”) as of November 30, 2013 that was or will be delivered to the Company at or prior to the Closing (the “Parent Balance Sheet Date”).

 

Section 5.14 Changes. Since the Parent Balance Sheet Date, except as disclosed in the Parent SEC Documents filed with the Commission at least five (5) Business Days prior to the Closing Date, Parent has not (a) incurred any debts, obligations or Liabilities, absolute, accrued or, to the Parent’s knowledge, contingent, whether due or to become due, ex (b) discharged or satisfied any Liens, (c) mortgaged, pledged or subjected to Lien any of its assets, tangible or intangible, (d) sold, transferred or leased any of its assets, (e) cancelled or compromised any debt or claim, or waived or released any right of material value, (f) suffered any physical damage, destruction or loss (whether or not covered by insurance) that has had or would reasonably be expected to have a Parent Material Adverse Effect, (g) entered into any transaction other than in the usual and ordinary course of business, (h) encountered any labor union difficulties, (i) made or granted any wage or salary increase or made any increase in the amounts payable under any profit sharing, bonus, deferred compensation, severance pay, insurance, pension, retirement or other employee benefit plan, agreement or arrangement, (j) issued or sold any shares of capital stock, bonds, notes, debentures or other securities or granted any options (including employee stock options), warrants or other rights with respect thereto, (k) declared or paid any dividends on or made any other distributions with respect to, or purchased or redeemed, any of its outstanding capital stock, (l) suffered or experienced any change in, or condition affecting, the financial condition of the Parent which (either by itself or in conjunction with all such other changes, events and conditions) could reasonably be expected to have a Parent Material Adverse Effect, (m) made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted, (n) made or permitted any amendment or termination of any material Contract, agreement or license to which it is a party, (o) suffered any material loss not reflected in the Parent Balance Sheet or its statement of income for the year ended on the Parent Balance Sheet Date, (p) paid, or made any accrual or arrangement for payment of, bonuses or special compensation of any kind or any severance or termination pay to any present or former officer, director, employee, stockholder or consultant, (q) made or agreed to make any charitable contributions or incurred any non-business expenses in excess of $1,000 in the aggregate, or (r) entered into any Contract, agreement or license, or (s) otherwise obligated itself to do any of the foregoing.

 

  

Section 5.15 Tax Returns and Audits. All required federal, state and local Tax Returns of the Parent or any of its subsidiaries have been accurately prepared in all material respects and duly and timely filed, and all federal, state and local Taxes required to be paid with respect to the periods covered by such returns have been paid to the extent that the same have become due. Each of the Parent and its subsidiaries is not and has not been delinquent in the payment of any Tax. Each of the Parent and its subsidiaries has not had a Tax deficiency assessed against it. None of the federal income Tax Returns or any state or local income or franchise Tax Returns filed by the Parent or any of its subsidiaries has been audited by governmental authorities. The reserves for Taxes reflected on the Parent Balance Sheet are sufficient for the payment of all unpaid Taxes payable by the Parent or any of its subsidiaries with respect to the period ended on the Parent Balance Sheet Date. There are no federal, state, local or foreign audits, actions, suits, proceedings, investigations, claims or administrative proceedings relating to Taxes or any Tax Returns of the Parent or any of its subsidiaries now pending, and the Parent has not received any notice of any proposed audits, investigations, claims or administrative proceedings relating to Taxes or any Tax Returns.

 

Section 5.16 Employee Benefit Plans; ERISA.

 

(a) Except as disclosed in the Parent SEC Documents, there are no “employee benefit plans” (within the meaning of Section 3(3) of ERISA) nor any other employee benefit or fringe benefit arrangements, practices, contracts, policies or programs other than programs merely involving the regular payment of wages, commissions, or bonuses established, maintained or contributed to by the Parent or any of its subsidiaries, whether written or unwritten and whether or not funded. Any such plans are hereinafter referred to as the “Parent Employee Benefit Plans.”

 

(b) Any current and prior material documents, including all amendments thereto, with respect to each Parent Employee Benefit Plan have been made available to the Company.

 

(c) All Parent Employee Benefit Plans are in material compliance with the applicable requirements of ERISA, the Code and any other applicable state, federal or foreign law.

 

(d) There are no pending, or to the knowledge of the Parent, threatened, claims or lawsuits that have been asserted or instituted against any Parent Employee Benefit Plan, the assets of any of the trusts or funds under the Parent Employee Benefit Plans, the plan sponsor or the plan administrator of any of the Parent Employee Benefit Plans or against any fiduciary of a Parent Employee Benefit Plan with respect to the operation of such plan.

 

  

(e) There is no pending, or to the knowledge of the Parent, threatened, investigation or pending or possible enforcement action by the Pension Benefit Guaranty Corporation, the Department of Labor, the Internal Revenue Service or any other government agency with respect to any Parent Employee Benefit Plan and Parent has no knowledge of any incident, transaction, occurrence or circumstance which might reasonably be expected to trigger such an investigation or enforcement action.

 

(f) No actual or, to the knowledge of Parent, contingent Liability exists with respect to the funding of any Parent Employee Benefit Plan or for any other expense or obligation of any Parent Employee Benefit Plan, except as disclosed on the Parent Financial Statements or the Parent SEC Documents, and to the knowledge of the Parent, no contingent Liability exists under ERISA with respect to any “multi-employer plan,” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.

 

Section 5.17 Interested Party Transactions. Except as disclosed in the Parent SEC Documents, no officer, director or stockholder of the Parent or any Affiliate of any such Person or the Parent has or has had, either directly or indirectly, (a) an interest in any Person that (i) furnishes or sells services or products that are furnished or sold or are proposed to be furnished or sold by the Parent or (ii) purchases from or sells or furnishes to the Parent any goods or services, or (b) a beneficial interest in any Contract to which the Parent is a party or by which it may be bound or affected.

 

Section 5.18 Questionable Payments. Neither the Parent, HFO, Acquisition Corp. nor to the knowledge of the Parent, any director, officer, agent, employee or other Person associated with or acting on behalf of the Parent, HFO or Acquisition Corp., has used any corporate funds for (a) unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) made any direct or indirect unlawful payments to government officials or employees from corporate funds, (c) established or maintained any unlawful or unrecorded fund of corporate monies or other assets, (d) made any false or fictitious entries on the books of record of any such corporations, or (e) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

 

Section 5.19 Obligations to or by Stockholders. Except as disclosed in the Parent SEC Documents, the Parent has no Liability or obligation or commitment to any stockholder of Parent or any Affiliate or “associate” (as such term is defined in Rule 405 under the Securities Act) of any stockholder of Parent, nor does any stockholder of Parent or any such Affiliate or associate have any Liability, obligation or commitment to the Parent.

 

Section 5.20 Schedule of Assets and Contracts. Other than this Agreement, and except as expressly set forth in the Parent Balance Sheet or the notes thereto, neither the Parent nor any of its subsidiaries is a party to any Contract. Parent does not own any real property. Without limiting the generality of the foregoing, neither Parent nor any of its subsidiaries is a party to any Contract (a) with any labor union, (b) for the purchase of fixed assets or for the purchase of materials, supplies or equipment in excess of normal operating requirements, (c) for the employment of any officer, individual employee or other Person on a full-time basis or any contract with any Person for consulting services, (d) with respect to bonus, pension, profit sharing, retirement, stock purchase, stock option, deferred compensation, medical, hospitalization or life insurance or similar plan, contract or understanding with any or all of the employees of Parent or any other Person, (e) relating to or evidencing Indebtedness or subjecting any asset or property of Parent or any of its subsidiaries to any Lien or evidencing any Indebtedness, (f) guaranteeing of any Indebtedness, (g) under which Parent or any of its subsidiaries is lessee of or holds or operates any property, real or personal, owned by any other Person, (h) under which Parent or any of its subsidiaries is lessor or permits any Person to hold or operate any property, real or personal, owned or controlled by Parent or any of its subsidiaries, (i) granting any preemptive right, right of first refusal or similar right to any Person, (j) with any Affiliate of Parent or any present or former officer, director or stockholder of Parent or any of its subsidiaries, (k) obligating Parent or any of its subsidiaries to pay any royalty or similar charge for the use or exploitation of any tangible or intangible property, (1) containing a covenant not to compete or other restriction on the parent’s ability to conduct a business or engage in any other activity, (m) with respect to any distributor, dealer, manufacturer’s representative, sales agency, franchise or advertising contract or commitment, (n) regarding the registration of securities under the Securities Act, (o) characterized as a collective bargaining agreement, or (p) with any Person continuing for a period of more than three months from the Closing Date that involves an expenditure or receipt by Parent in excess of $1,000. Parent has furnished to the Company true and complete copies of all Contracts to which it or any of its subsidiaries is a party or to which their respective assets are bound.

 

  

Section 5.21 Environmental Matters.

 

(a) Neither Parent nor any of its subsidiaries has ever generated, used, handled, treated, released, stored or disposed of any Hazardous Materials on any real property on which it now has or previously had any leasehold or ownership interest

 

(b) The historical and present operations of the business of the Parent and its subsidiaries is in compliance with all applicable Environmental Laws.

 

(c) (i) Neither Parent nor any of its subsidiaries has sent or disposed of, otherwise had taken or transported, arranged for the taking or disposal of (on behalf of itself, a customer or any other party) or in any other manner participated or been involved in the taking of or disposal or release of a Hazardous Material to or at a site that is contaminated by any Hazardous Material or that, pursuant to any Environmental Law, (A) has been placed on the “National Priorities List”, the “CERCLIS” list, or any similar state or federal list, or (B) is subject to or the source of a claim, an administrative order or other request to take “removal”, “remedial”, “corrective” or any other “response” action, as defined in any Environmental Law, or to pay for the costs of any such action at the site; (ii) neither Parent nor any of its subsidiaries is involved in (or has any basis to reasonably expect to be involved in) any suit or proceeding or has received (or has any basis to reasonably expect to receive) any written notice, request for information or other communication from any governmental authority or other third party with respect to a release or threatened release of any Hazardous Material or a violation or alleged violation of any Environmental Law, or has received (or has any basis to reasonably expect to receive) written notice of any claims from any Person relating to property damage, natural resource damage or to personal injuries from exposure to any Hazardous Material; and (iii) the Parent has timely filed every report required to be filed, acquired all necessary certificates, approvals and permits, and generated and maintained all required data, documentation and records under all Environmental Laws.

 

  

(d) There are no pending or, to the knowledge of Parent, threatened, demands, claims, information requests or notices of noncompliance or violation against or to the Parent or any of its subsidiaries relating to any Environmental Law; and, to the knowledge of Parent, there are no conditions or occurrences on any of the real property used by Parent or any of its subsidiaries in connection with its business that would reasonably be expected to lead to any such demands, claims or notices against or to Parent or any of its subsidiaries.

 

Section 5.22 Employees. Neither Parent nor any of its subsidiaries is under any obligation or liability to any of their respective officers, directors or employees.

 

Section 5.23 Title to Property and Encumbrances. Each of Parent and its subsidiaries has good and valid title to all properties and assets used in the conduct of its business (except for property held under valid and subsisting leases which are in full force and effect and which are not in default) free of all Liens except Permitted Liens.

 

Section 5.24 Condition of Properties. All facilities, machinery, equipment, fixtures and other properties owned, leased or used by Parent or its subsidiaries are in operating condition, subject to ordinary wear and tear, and are adequate and sufficient for the Parent’s existing business.

 

Section 5.25 Insurance Coverage. Parent has in full force and effect one or more policies of insurance insuring Parent and its properties, products and business against such losses and risks, and in such amounts, as are customary for entities engaged in the same or similar business as Parent and similarly situated. Parent has not been refused any insurance coverage sought or applied for, and Parent has no reason to believe that it will be unable to renew any existing insurance coverage as and when the same shall expire upon terms at least as favorable to those currently in effect, other than possible increases in premiums that do not result from any act or omission of Parent. No suit, proceeding or action or, to the knowledge of Parent, threat of suit, proceeding or action has been asserted or made against Parent due to alleged bodily injury, disease, medical condition, death or property damage arising out of the function or malfunction of a product, procedure or service designed, manufactured, sold or distributed by Parent or any of its subsidiaries.

 

Section 5.26 Disclosure. There is no fact relating to Parent, HFO or Acquisition Corp. that Parent has not disclosed to the Company in writing that has had, is having or would reasonably be expected to have a Parent Material Adverse Effect. No representation or warranty made by Parent or Acquisition Corp. herein and no information disclosed in the exhibits hereto by Parent or Acquisition Corp. contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading.

 

Section 5.27 No Liabilities. As of the Effective Time, there are no Liabilities or Indebtedness of the Parent or Acquisition Corp. of any kind whatsoever, whether recorded on the Parent Balance Sheet or not, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such Liability or Indebtedness. Neither the Parent nor the Acquisition Corp. is a guarantor of any Indebtedness of any other Person.

 

  

Section 5.28 Disclosure. There is no fact relating to the Parent, HFO or Acquisition Corp. that the Parent has not disclosed to the Company in writing that has had or is currently having a Parent Material Adverse Effect. No representation or warranty by the Parent herein and no information disclosed in the exhibits hereto by the Parent contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading.

 

 

 

ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER

 

Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement, the Parent, HFO and Acquisition Corp. agree that:

 

(i) the business of Parent, HFO and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;

 

(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its charter or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock;

 

(iii) neither Parent, HFO nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any agreement, commitment or arrangement to dissolve, merge, consolidate or enter into any other material business contract or enter into any negotiations in connection therewith;

 

(iv) Parent shall preserve intact the business of Parent, HFO and Acquisition Corp., keep available the service of its present officers and key employees, preserve the good will of those having business relationships with Parent and Acquisition Corp. and file all required SEC Reports under the Exchange Act;

 

(v) neither Parent, HFO nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and

 

  

(vi) neither Parent, HFO nor Acquisition Corp. will enter into any new employment agreements with any of their officers or employees or grant any increases in the compensation or benefits of their officers and employees.

 

ARTICLE VII
ADDITIONAL AGREEMENTS

 

Section 7.1 Access and Information. The Company, Parent, HFO and Acquisition Corp. shall each afford to the other and to the other’s accountants, counsel and other representatives reasonable access during normal business hours throughout the period prior to the Effective Time to all of its properties, books, contracts, commitments and records (including but not limited to the Parent’s Tax Returns) and during such period, each shall furnish promptly to the other all information concerning its business, properties and personnel as such other party may reasonably request, provided that no investigation pursuant to this Section 7.1 shall affect any representations or warranties made herein. The parties confirm that Parent has received financial information as identified in Section 4.5 and has had an opportunity to speak with Company’s counsel to ask questions. Each party shall hold, and shall cause its employees and agents to hold, in confidence all such information (other than such information that (i) becomes generally available to the public other than as a result of a disclosure by such party or its directors, officers, managers, employees, agents or advisors, or (ii) becomes available to such party on a non-confidential basis from a source other than a party hereto or its advisors, provided that such source is not known by such party to be bound by a confidentiality agreement with or other obligation of secrecy to a party hereto or another party until such time as such information is otherwise publicly available); provided, however, that: (A) any such information may be disclosed to such party’s directors, officers, employees and representatives of such party’s advisors who need to know such information for the purpose of evaluating the transactions contemplated hereby (it being understood that such directors, officers, employees and representatives shall be informed by such party of the confidential nature of such information); (B) any disclosure of such information may be made as to which the party hereto furnishing such information has consented in writing; and (C) any such information may be disclosed pursuant to a judicial, administrative or governmental order or request provided, that the requested party will promptly so notify the other party so that the other party may seek a protective order or appropriate remedy and/or waive compliance with this Agreement and, if such protective order or other remedy is not obtained or the other party waives compliance with this provision, the requested party will furnish only that portion of such information that is legally required. If this Agreement is terminated, each party will deliver to the other all documents and other materials (including copies) obtained by such party or on its behalf from the other party as a result of this Agreement or in connection herewith, whether obtained before or after the execution hereof.

 

  

Section 7.2 Additional Agreements. Subject to the terms and conditions herein provided, each of the parties hereto agrees to use its commercially reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including using its commercially reasonable best efforts to satisfy the conditions precedent to the obligations of any of the parties hereto to obtain all necessary waivers, and to lift any injunction or other legal bar to the Merger (and, in such case, to proceed with the Merger as expeditiously as possible). In order to obtain any necessary governmental or regulatory action or non-action, waiver, Consent, extension or approval, each of Parent, Acquisition Corp. and the Company agrees to take all reasonable actions and to enter into all reasonable agreements as may be necessary to obtain timely governmental or regulatory approvals and to take such further action in connection therewith as may be necessary. In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and/or directors of Parent, Acquisition Corp. and the Company shall take all such necessary action.

 

Section 7.3 Publicity. No party shall issue any press release or public announcement pertaining to the Merger that has not been agreed upon in advance by Parent and the Company, except as Parent reasonably determines to be necessary in order to comply with the rules of the Commission; provided that in such case Parent will use its best efforts to allow Company to review and reasonably approve any of the same prior to its release.

 

Section 7.4 Appointment of Directors. Following the Effective Time, the election of members of Parent’s Board of Directors shall be accomplished in accordance with the by-laws of Parent, as the same may be amended or restated from time to time in accordance with the terms thereof.

 

Section 7.5 Name Change. As soon as practicable on or after the Effective Time, Parent shall take all required legal action necessary in order to change Parent’s corporate name to “Southport Lane, Inc.”.

 

Section 7.6 Company Stockholder Consent.

 

(a) The Company, acting through its Board of Directors, shall, in accordance with the DGCL and its Certificate of Incorporation and by-laws, take all actions reasonably necessary to obtain the written consent of the Company Stockholders as permitted by applicable law and its Certificate of Incorporation to approve this Agreement and the transactions contemplated hereby.

 

(b) Pursuant to the DGCL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Company Stockholders, the Merger and this Agreement may be terminated in accordance with the terms hereof, without further action by the Company Stockholders.

 

  

ARTICLE VIII
CONDITIONS OF PARTIES’ OBLIGATIONS

 

Section 8.1 Company Obligations. The obligations of Parent and Acquisition Corp. under this Agreement are subject to the fulfillment by the Company at or prior to the Closing of the following conditions, any of which may be waived in whole or in part by Parent:

 

(a) No Errors, etc. The representations and warranties of the Company under this Agreement shall be true and correct in all material respects as of the Closing Date and shall then be.

 

(b) Compliance with Agreement. The Company shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it on or before the Closing Date.

 

(c) No Action. No Action or proceeding before any court, governmental body or agency shall have been threatened, asserted or instituted to restrain or prohibit, or to obtain substantial damages in respect of, this Agreement or the carrying out of the transactions contemplated by this Agreement.

 

(d) Form 8-K. The Company, with the assistance of the Parent, shall have prepared the Current Report on Form 8-K required to be filed within four (4) Business Days of the Closing Date as a result of the consummation of the transactions contemplated hereby.

 

(e) Supporting Documents. Parent and Acquisition Corp. shall have received the following:

 

(1) Copies of resolutions of the Board of Directors and the stockholders of the Company, certified by the President of the Company, authorizing and approving the Merger and the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered pursuant hereto and thereto.

 

(2) A certificate of incumbency executed by the Secretary of the Company certifying the names, titles and signatures of the officers authorized to execute any documents referred to in this Agreement and further certifying that the certificate of incorporation and by-laws of the Company delivered to Parent and Acquisition Corp. at the time of the execution of this Agreement have been validly adopted and have not been amended or modified since the date hereof.

 

(3) Evidence as of a recent date of the good standing and corporate existence of the Company issued by the Secretary of State of the State of Delaware.

 

Section 8.2 Parent and Acquisition Corp. Obligations. The obligations of the Company under this Agreement are subject to the fulfillment by Parent and Acquisition Corp. at or prior to the Closing of the following conditions, any of which may be waived in whole or in part by the Company:

 

  

(a) No Errors, etc. The representations and warranties of Parent and Acquisition Corp. under this Agreement shall be true and correct in all material respects as of the Closing Date.

 

(b) Compliance with Agreement. Parent and Acquisition Corp. shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by them on or before the Closing Date.

 

(c) No Parent Material Adverse Effect. Since the date hereof, there shall not have been any event or circumstance that has resulted in a Parent Material Adverse Effect and no event has occurred or circumstance exists that would be reasonably expected to result in such a Parent Material Adverse Effect.

 

(d) Certificate of Officers. Parent and Acquisition Corp. shall have delivered to the Company a certificate dated the Closing Date, executed on their behalf by their respective Presidents, certifying the satisfaction of the conditions specified in paragraphs (a), (b), and (c) of this Section 8.2.

 

(e) Supporting Documents. The Company shall have received the following:

 

(1) Copies of resolutions of Parent’s and Acquisition Corp.’s respective board of directors and the sole stockholder of Acquisition Corp., certified by their respective Secretaries, authorizing and approving the Merger and the execution, delivery and performance of this Agreement and all other documents and instruments to be delivered by them pursuant hereto.

 

(2) A certificate of incumbency executed by the respective Secretaries of Parent and Acquisition Corp. certifying the names, titles and signatures of the officers authorized to execute the documents referred to in paragraph (1) above and further certifying that the charter and by-laws of Parent and Acquisition Corp. appended thereto have not been amended or modified.

 

(3) A certificate, dated the Closing Date, executed by the Secretary of each of the Parent and Acquisition Corp., certifying that, except for the filing of the certificate of merger with the Secretary of State of the State of Delaware: (i) all consents, authorizations, orders and approvals of, and filings and registrations with, any court, governmental body or instrumentality that are required to be obtained by Parent or Acquisition Corp. for the execution and delivery of this Agreement and the consummation of the Merger shall have been duly made or obtained; and (ii) no action or proceeding before any court, governmental body or agency has been threatened, asserted or instituted against Parent or Acquisition Corp. to restrain or prohibit, or to obtain substantial damages in respect of, this Agreement or the carrying out of the transactions contemplated by this Agreement.

 

(4) A certificate of Parent’s transfer agent and registrar, certifying as of the business day prior to the Closing Date, a true and complete list of the names and addresses of the record owners of all of the outstanding shares of Parent Common Stock, together with the number of shares of Parent Common Stock held by each record owner.

 

  

(5) The executed resignations of all directors and officers of Parent, with the director resignations to take effect following the notice period required by federal law, and (ii) executed releases from each such director and officer in the form and substance acceptable to the Company in its sole discretion.

 

(6) Evidence as of a recent date of the good standing and corporate existence of each of the Parent and Acquisition Corp. issued by the Secretary of State of their respective states of incorporation.

 

(7) Such additional supporting documentation and other information with respect to the transactions contemplated hereby as the Company may reasonably request.

 

ARTICLE IX
INDEMNIFICATION AND RELATED MATTERS

 

Section 9.1 Indemnification by Parent. Parent shall indemnify and hold harmless the Company, its officers, directors and the Stockholders (collectively, the “Company Indemnified Parties”), and shall reimburse the Company Indemnified Parties for, any loss, liability, claim, damage, expense (including, but not limited to, costs of investigation and defense and reasonable attorneys’ fees) or diminution of value arising from or in connection with (a) any inaccuracy, in any material respect, in any of the representations and warranties of Parent and Acquisition Corp. in this Agreement or in any certificate delivered by Parent and Acquisition Corp. to the Company pursuant to this Agreement, or any actions, omissions or statements of fact inconsistent with any such representation or warranty, (b) any failure by Parent or Acquisition Corp. to perform or comply in any material respect with any covenant or agreement in this Agreement, (c) any claim for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such party with Parent or Acquisition Corp. in connection with any of the transactions contemplated by this Agreement, (d) any and all Taxes attributable to any transaction or event occurring on or prior to the Closing, (e) any claim relating to or arising out of any Liabilities of either Parent or Acquisition Corp. on or prior to Closing or with respect to accounting fees arising thereafter, (f) any litigation, action, claim, proceeding or investigation by any third party relating to or arising out of the business or operations of Parent or any of its subsidiaries, or the actions of Parent, its subsidiaries or any holder of Parent capital stock prior to the Effective Time, (g) any and all Taxes for which Parent, its subsidiaries or their respective assets may be liable or subject as a consequence of Parent’s acquisition, formation, capitalization, and ownership, whether related to a taxable period (or portion thereof) ending on or after the Closing Date, and (h) all fees and expenses incurred in connection with effecting the adjustments contemplated by Section 9.4 (collectively, “Damages”).

 

Section 9.2 Survival. All representations and warranties of Parent and Acquisition Corp. contained in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing indefinitely. The representations and warranties of the Company contained in this Agreement or in any instrument delivered pursuant to this Agreement will terminate at, and have no further force and effect after, the Effective Time.

 

  

Section 9.3 Notice of Claims.

 

(a) If, at any time on or prior to the Claims Deadline, a Company Indemnified Party shall assert a claim for indemnification pursuant to Section 9.1, such Company Indemnified Party shall submit to Parent a written claim stating: (i) the amount or reasonable estimate thereof of the Damages it reasonably believes it may incur; and (ii) in reasonable detail, the facts alleged as the basis for such claim.

 

(b) In the event that any action, suit or proceeding is brought against any Company Indemnified Party with respect to which Parent may have liability under this Article IX, the Parent shall have the right, at its cost and expense, to defend such action, suit or proceeding in the name and on behalf of the Company Indemnified Party; provided, however, that a Company Indemnified Party shall have the right to retain its own counsel, with fees and expenses paid by Parent, if representation of the Company Indemnified Party by counsel retained by Parent would be inappropriate because of actual or potential differing interests between Parent and the Company Indemnified Party. In connection with any action, suit or proceeding subject to this Article IX, Parent and each Company Indemnified Party agree to render to each other such assistance as may reasonably be required in order to ensure proper and adequate defense of such action, suit or proceeding. Parent shall not settle or compromise any claim or demand if such settlement or compromise does not include an irrevocable and unconditional release of such Company Indemnified Parties for any liability arising out of such claim or demand.

 

Section 9.4 Post-Closing Adjustment. In the event that the Company Indemnified Parties incur any Damages which have not been paid or reimbursed to the Company by Parent, in addition to any other remedies then available to the Company, the Parent shall issue to the Company Stockholders of record immediately prior to the Effective Time and/or their designees such number of shares of Parent Common Stock as would result from dividing (x) the whole dollar amount representing such Damages by (y) One Dollar ($1.00) per share.

 

ARTICLE X
TERMINATION PRIOR TO CLOSING

 

Section 10.1 Termination of Agreement. This Agreement may be terminated at any time prior to the Closing:

 

(a) by the mutual written consent of the Company, Acquisition Corp. and Parent;

 

(b) by the Company, if Parent or Acquisition Corp. (i) fails to perform in any material respect any of its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which failure or breach is not cured within thirty (30) days after the Company has notified Parent and Acquisition Corp. of its intent to terminate this Agreement pursuant to this paragraph (b);

 

(c) by Parent and Acquisition Corp., if the Company (i) fails to perform in any material respect any of its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which failure or breach is not cured within thirty (30) days after Parent or Acquisition Corp. has notified the Company of its intent to terminate this Agreement pursuant to this paragraph (c);

 

  

(d) by either the Company, on the one hand, or Parent and Acquisition Corp., on the other hand, if there shall be any order, writ, injunction or decree of any court or governmental or regulatory agency binding on Parent, Acquisition Corp. or the Company, which prohibits or materially restrains any of them from consummating the transactions contemplated hereby; provided that the parties hereto shall have used their best efforts to have any such order, writ, injunction or decree lifted and the same shall not have been lifted within ninety (90) days after entry, by any such court or governmental or regulatory agency; and

 

(e) by either the Company, on the one hand, or Parent and Acquisition Corp., on the other hand, if the Closing has not occurred on or prior to January 31, 2013, for any reason other than delay or nonperformance of the party seeking such termination.

 

Section 10.2 Termination of Obligations. Termination of this Agreement pursuant to Section 10.1 hereof shall terminate all obligations of the parties hereunder, except for the obligations under Article IX, Article X and Article XI hereof; provided, however, that termination pursuant to paragraphs (b) or (c) of Section 10.1 shall not relieve the defaulting or breaching party or parties from any liability to the other parties hereto.

 

ARTICLE XI
MISCELLANEOUS

 

Section 11.1 Amendments. This Agreement may be amended or modified only by a written agreement executed and delivered by each party hereto at any time prior to the Effective Time.

 

Section 11.2 Notices. Any notice, request, instruction, other document or communications to be given hereunder by any party hereto to any other party hereto shall be in writing and shall be deemed to have been duly given (a) when delivered personally, (b) upon confirmation of delivery if by electronic mail, (c) upon receipt of a transmission confirmation (with a confirming copy delivered personally or sent by overnight courier) if sent by facsimile or like transmission, or (d) on the next business day when sent by Federal Express, United Parcel Service, U.S. Express Mail or other reputable overnight courier for guaranteed next day delivery, to such other persons or addresses as may be designated in writing by the party to receive such notice. Nothing in this Section 11.2 shall be deemed to constitute consent to the manner and address for service of process in connection with any legal proceeding (including arbitration arising in connection with this Agreement), which service shall be effected as required by applicable law.

 

Section 11.3 Entire Agreement. This Agreement and the exhibits attached hereto and thereto, respectively, of constitute the entire agreement of the parties hereto, and supersede all prior agreements and undertakings, both written and oral, among the parties hereto, with respect to the subject matter hereof and thereof.

 

  

Section 11.4 Expenses. Except as otherwise expressly provided herein, in the event that the Merger does not occur, all expenses and fees incurred by Parent and Acquisition Corp. on one hand, and the Company on the other, shall be borne solely and entirely by the party that has incurred such expenses or fees; provided, that if the Merger occurs, Parent agrees to pay, or shall cause the Surviving Corporation to pay, any unpaid fees and expenses of the Company (including fees and expenses of its counsel and other advisors) in connection with the consummation of the transactions contemplated by this Agreement.

 

Section 11.5 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to amend or modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible.

 

Section 11.6 Simultaneous Transactions. All actions, events and transactions that are described in this Agreement as occurring on or as of the Effective Time shall be deemed to have occurred simultaneously as of the Effective Time, regardless of when such actions, events or transactions actually occur.

 

Section 11.7 Successors and Assigns; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated by any of the parties hereto without, in the case of Parent and Acquisition Corp., the prior written approval of the Company and, in the case of the Company, the prior written approval of Parent.

 

Section 11.8 No Third Party Beneficiaries. Except as set forth in Section 9.1 and Section 11.6, nothing herein expressed or implied shall be construed to give any person other than the parties hereto (and their successors and assigns as permitted herein) any legal or equitable rights hereunder.

 

Section 11.9 Counterparts; Delivery by Facsimile. This Agreement may be executed in multiple counterparts, and by the different parties hereto in separate counterparts, each of which when executed will be deemed to be an original but all of which taken together will constitute one and the same agreement. This Agreement and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or by electronic mail, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.

 

Section 11.10 Waiver. At any time prior to the Effective Time, any party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other party hereto; (b) waive any inaccuracies in the representations and breaches of the warranties of the other party contained herein or in any document delivered pursuant hereto; and (c) waive compliance by the other party with any of the agreements or conditions contained herein. Any such extension or waiver will be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby.

 

  

Section 11.11 No Constructive Waivers. No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty, agreement or covenant herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. No waiver by any party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

Section 11.12 Further Assurances. The parties hereto shall use their commercially reasonable efforts to do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments or documents as any other party hereto may reasonably request in order to carry out fully the intent and purposes of this Agreement and the consummation of the transactions contemplated hereby.

 

Section 11.13 Recitals. The recitals set forth above are incorporated herein and, by this reference, are made part of this Agreement as if fully set forth herein.

 

Section 11.14 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

 

Section 11.15 Governing Law. This Agreement and the agreements, instruments and documents contemplated hereby shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to its conflicts of law principles.

 

Section 11.16 Dispute Resolution. The parties hereto shall initially attempt to resolve all claims, disputes or controversies arising under, out of or in connection with this Agreement by conducting good faith negotiations amongst themselves. If the parties hereto are unable to resolve the matter following good faith negotiations, the matter shall thereafter be resolved by binding arbitration and each party hereto hereby waives any right it may otherwise have to the resolution of such matter by any means other than binding arbitration pursuant to this Section 11.16. Whenever a party shall decide to institute arbitration proceedings, it shall provide written notice to that effect to the other parties hereto. The party giving such notice shall, however, refrain from instituting the arbitration proceedings for a period of sixty (60) days following such notice. During this period, the parties shall make good faith efforts to amicably resolve the claim, dispute or controversy without arbitration. Any arbitration hereunder shall be conducted in the English language under the commercial arbitration rules of the American Arbitration Association. Any such arbitration shall be conducted in New York, New York by a panel of three arbitrators: one arbitrator shall be appointed by each of Parent and Company; and the third shall be appointed by the American Arbitration Association. The panel of arbitrators shall have the authority to grant specific performance. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based on the claim, dispute or controversy in question would be barred under this Agreement or by the applicable statute of limitations. The prevailing party in any arbitration in accordance with this Section 11.16 shall be entitled to recover from the other party, in addition to any other remedies specified in the award, all reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party to arbitrate the claim, dispute or controversy.

 

  

Section 11.17 Interpretation.

 

(a) When a reference is made in this Agreement to a section or article, such reference shall be to a section or article of this Agreement unless otherwise clearly indicated to the contrary.

 

(b) Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”

 

(c) The words “hereof”, “hereby”, “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph, exhibit and schedule references are to the articles, sections, paragraphs, exhibits and schedules of this Agreement unless otherwise specified.

 

(d) The words “knowledge,” or “known to,” or similar terms, when used in this Agreement to qualify any representation or warranty, refer to the knowledge or awareness of certain specific facts or circumstances related to such representation or warranty of the officers and directors of such parties, which a prudent business person would have obtained after reasonable investigation or due diligence on the part of any such person.

 

(e) The word “subsidiary” shall mean any entity of which at least a majority of the outstanding shares or other equity interests having ordinary voting power for the election of directors or comparable managers of such entity is owned, directly or indirectly by another Person.

 

(f) For purposes of this Agreement, “ordinary course of business” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).

 

(g) The plural of any defined term shall have a meaning correlative to such defined term, and words denoting any gender shall include all genders. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.

 

(h) A reference to any legislation or to any provision of any legislation shall include any modification or re-enactment thereof, any legislative provision substituted therefor and all regulations and statutory instruments issued thereunder or pursuant thereto, unless the context requires otherwise.

 

(i) The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written by their respective officers thereunto duly authorized.

 

		COMPANY:
		SOUTHPORT LANE  INC.
		By:		/s/ Alexander C. Burns
		Name:		Alexander C. Burns
		Title:		CEO
		PARENT:
		GLOBAL CONDIMENTS, INC.
		By:	/s/ Charles C. Herlocher
		Name:	Charles C. Herlocher
		Title:	CEO
		ACQUISITION CORP.:
		SPL AQUISITION CORP.
		By:	/s/ Charles C. Herlocher
		Name:	Charles C. Herlocher
		Title:	CEO

 

EXHIBIT INDEX

 

 

Exhibit	Description
A	Certificate of Incorporation
B	By-Laws
C	List of Officers and Directors
D	Company Balance Sheet