AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is entered into as
of the 12 day of July, 2000, by and among Vinex Wines, Inc., a Delaware
corporation ("VWI") and Peppercorn Industrial Corporation, a Nevada corporation
("PI")
WHEREAS, VWI is authorized to issue up to 50,000,000 shares of common
stock, $.001 par value ("VWI Common Stock") of which 25,000,000 shares are
issued and outstanding; and
WHEREAS PI is authorized to issue up to 100,000,000 shares of common
stock, $.001 par value ("PI Stock"); of which 1,000,000 shares are issued and
outstanding; and
WHEREAS the respective Boards of Directors of VWI and PI believe it to
be in the best interests of their respective corporations and shareholders for
VWI to merge with and into PI (PI and VWI sometimes referred to as the
"Constituent Corporations") upon the terms and conditions herein contained; and
in connection therewith have each adopted, approved and authorized the execution
and delivery of this Agreement and Plan of Merger (the "Agreement"); and
WHEREAS, the Boards of Directors of PI and VWI has submitted this
Agreement and the subject merger to its shareholders for approval as required by
the corporate law of the respective States of incorporation.
NOW THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements herein contained, the
parties hereto do hereby agree as follows:
I. MERGER
1.01 Effective Time. The merger contemplated by this Agreement shall be
effective on the date and time that the Certificate of Merger is filed with the
Secretary of State of the State of Nevada (the "Effective Time").
1.02 Merger. Upon the terms and subject to the conditions set forth in
this Agreement, and in accordance with the Nevada Revised Statutes of the State
of Nevada (the "NRS"), VWI shall be merged with and into PI at the Effective
Time (the "Merger"). As of the Effective Time, the separate corporate existence
of VWI shall cease and PI shall continue as the surviving corporation (the
"Surviving Corporation") under the new name of Vinex Wines, Inc. and shall
succeed to and assume all the rights and obligations of VWI in accordance with
the Nevada Revised Statutes. Without limiting the generality of the foregoing:
(a) PI, as the surviving corporation, shall continue its
corporate existence under the laws of the State of Nevada and shall possess all
of the rights, privileges, immunities, powers, franchises and authority (both
public and private) of, and be subject to all of the restrictions, disabilities
and duties of, PI and VWI;
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(b) all of the assets and property of VWI of every kind,
nature and description (real, personal and mixed and both tangible and
intangible) and every interest therein, wheresoever located, including without
limitation all debts or other obligations belonging or due to VWI, all stock
subscriptions, claims and chooses in action shall be and be deemed to be vested,
absolutely and unconditionally in PI (to the same extent, degree and manner as
previously vested in VWI);
(c) all debts and obligations of VWI, all rights of creditors
of VWI and all liens encumbering any of the property of VWI vested in PI shall
remain in full force and effect without modification or impairment and shall be
and be deemed to be enforceable against PI and its assets and properties with
the same full force and effect as if such debts, obligations or liens had been
originally incurred or created by PI in its own name and for its own behalf.
1.03 Closing. Subject to the satisfaction or waiver of the last of the
conditions set forth in Article VI hereof, the closing of the Merger will take
place at 10:00 am on June 23, 2000, at the law offices of Steven Siskind, 645
Fifth Avenue, Fourth Floor, New York, NY 10022 or at such other time and place
as the parties to this Agreement shall agree (the "Closing Date"). Subject to
the terms and conditions of this Agreement, on the Closing Date: (a) the parties
hereto shall each deliver to the other the documents, agreements, payments and
consideration required to be delivered by each to the other party hereto as
herein expressly provided and (b) the Constituent Corporations shall execute two
originals of a Certificate of Merger in the forms required for filing with the
Secretary's of State of Nevada and Delaware, which Certificates of Merger shall
be filed by the parties with the Secretary's of State of Delaware and Nevada
immediately after execution on the Closing Date. Subsequent to the Closing the
parties hereto shall thereafter execute, acknowledge, deliver and/or record such
other and further instruments, documents or certificates and/or take an perform
such other and further actions as may be required to effect and/or implement the
merger.
1.04 Name. The name of the Surviving Corporation shall be "Vinex Wines,
Inc."
1.05 Constitutional Documents, Directors and Officers. On and as of the
Effective Time:
(a) The Certificate of Incorporation of PI on such date in
full force and effect shall be the Certificate of Incorporation of PI, as the
surviving corporation, until the same shall be altered, amended, modified,
terminated or rescinded in the manner provided by the Nevada Revised Statutes;
which rights of alteration, amendment, modification, termination and/or
rescission are hereby expressly reserved by PI;
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(b) The By-Laws of PI on such date in full force and effect,
shall be the By-Laws of PI, as the surviving corporation, until the same shall
be altered, amended, modified, terminated or rescinded in the manner provided in
the Certificate of Incorporation and/or the NRS; which rights of alteration,
amendment, modification, termination and/or rescission are hereby expressly
reserved by PI;
(c) The members of the Board of Directors, and the officers of
PI, the Surviving Corporation, shall consist of the directors and officers of
VWI immediately prior to the Effective Time; each to serve in such capacity
until the earlier of their resignation or removal or until their successors are
duly elected and qualified.
1.06 Principal Office. The principal office of the Surviving
Corporation shall be the principal office of PI as of the Effective Time, which
is Vinex Wines, Inc., 11 East 44th Street, Suite 504, New York, NY 10017.
II. EFFECT OF MERGER ON CAPITAL STOCK OF CONSTITUENT CORPORATIONS -
EXCHANGE OFCERTIFICATES
2.01 Conversion of Capital Stock of VWI. As of the Effective Time, the
shares of VWI Stock shall be converted and exchanged into shares of PI Common
Stock and cash consideration in the following manner:
(a) Each issued and outstanding share of VWI Stock shall, by
virtue of the merger and without any action on the part of the holder thereof,
be converted and exchanged into 1/5 of a share of fully paid and non-assessable
share of PI Common Stock, factional shares shall be rounded up;
(b) After the Effective Time, each holder, other than a
Dissenting Shareholder, of an outstanding certificate which prior to the
Effective Time represented shares of VWI Stock shall surrender such certificate
("Old Certificate") to PI, and such holder shall be entitled upon such surrender
to receive in exchange therefore a certificate for that number of shares of PI
Common Stock which such holder is entitled to receive under Section 2.01(a) of
this Agreement. Until surrendered as contemplated by this sub-section, each Old
Certificate for shares of VWI Stock shall be deemed at all times after the
Effective Time to represent and evidence (for all corporate purposes) that
number of shares of PI Common Stock into which the shares of VWI Stock
theretofore represented by such Old Certificate shall have been converted
pursuant to Section 2.01(a) hereof. From and after the Effective Time the sole
rights of the holders of Old Certificates representing shares of VWI Stock shall
be those to which they are entitled as owners of PI Common Stock into which the
shares of VWI Stock evidenced by such Old Certificates have been converted as
herein provided;
(c) Upon the issuance of the PI Common Stock to the
shareholders of VWI as herein provided in exchange for their shares of VWI
Stock, there shall be credited to the capital accounts of PI an amount equal to
the fair market value of the shares of PI Common Stock so issued; and of the
amount so credited, the portion thereof in excess of the aggregate par value
thereof shall be credited to the capital surplus account.
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(d) Notwithstanding anything in this Agreement to the
contrary, any issued and outstanding shares of VWI Stock held by a person who
complies with all of the provisions of Delaware law concerning the rights of
holders of VWI Stock to object to the Merger and require appraisal of their
shares ("Dissenting Shares" and "Dissenting Shareholders", as the case may be)
shall not be converted as described in Section 2.01(a) but shall, instead
entitle the holder thereof to receive such consideration as may be determined to
be due to such Dissenting Shareholder pursuant to Delaware law. If, after the
Effective Time, such Dissenting Shareholder withdraws his demand for appraisal
or fails to perfect or otherwise loses his right of appraisal pursuant to
Delaware law, each of his shares shall be deemed to be converted as of the
Effective time into the PI Common Stock specified in Section 2.01(a).
III. REPRESENTATIONS AND WARRANTIES OF PI
In order to induce VWI to execute and perform this Agreement, PI does
hereby represent, warrant, covenant and agree (which representations,
warranties, covenants and agreements shall be and be deemed to be continuing and
survive the execution and delivery of this Agreement, the Closing and the
Effective Time) as follows:
3.01 Organization and Qualification.
(a) PI is a corporation duly organized, validly existing, and
in good standing under the laws of Nevada, with all requisite power and
authority to own, lease, license, and use its properties and assets and to carry
on the business in which it is now engaged. PI is duly qualified to transact the
business in which it is engaged and is in good standing as a foreign corporation
in every jurisdiction in which its ownership, leasing, licensing, or use of
property or assets or the conduct of its business makes such qualification
necessary.
(b) PI has furnished to VWI its Certificate of Incorporation
and By-Laws, as presently in effect, certified by the Secretary of the
corporation. PI is not in material violation or breach of, or in default with
respect to, any term of its Certificate of Incorporation or By-Laws.
3.02 Capitalization. The authorized capital stock of PI consists of
100,000,000 shares of PI Common Stock of which 1,000,000 shares were issued and
outstanding as of March 31, 2000.
3.03 Authority. PI has all requisite power and authority to execute,
deliver, and perform this Agreement. All necessary corporate proceedings of PI
have been or as of the Effective Time will have been duly taken to authorize the
execution, delivery, and performance of this Agreement by PI. This Agreement has
been duly authorized, executed, and delivered by PI, constitutes the legal,
valid, and binding obligation of, PI, and is enforceable as to PI in accordance
with its terms subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the rights of
creditors generally and the discretion of courts in granting equitable remedies.
Except for the provisions of the Nevada Revised Statutes governing the filing of
the Certificate of Merger, no consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any federal,
state, local, or other governmental authority or any court or other tribunal is
required by PI for the execution, delivery, or performance of this Agreement by
PI.
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3.04 PI Common Stock. All of the shares of PI Common Stock to be issued
by PI pursuant to this Agreement shall be and be deemed to be duly and validly
authorized and, when issued to the shareholders of VWI in exchange for their VWI
Stock, duly and validly issued, fully paid and non-assessable and free and clear
of all federal and state issuance, stock and/or company taxes (exclusive of the
Delaware Stamp Tax which, if and when due, shall be paid by the surviving
corporation), liens, claims, encumbrances and charges.
3.05 Certificate. The representations, warranties, covenants and
agreements of PI contained in this Agreement, including, without limitation,
those contained in this Article III, are true, accurate and correct in all
respects as of the date hereof and shall be true, accurate and correct and
complete, in all respects, as of the Closing; and at the Closing PI shall
deliver to VWI a certificate, executed by the chief executive officer of PI
remaking, on behalf of PI, each of the representations, warranties, covenants
and agreements of PI set forth in this Agreement, including without limitation,
those set forth in this Article III hereof.
3.06 Financial Statements and Condition.
(a) PI has delivered to VWI a true, correct and complete copy
of its Form 10-SB dated December 2, 1999 ("Registration Statement") filed
pursuant to the Securities Exchange Act of 1934, as amended (the "34 Act") which
contains therein the audited balance sheet, statement of income, statement of
retained earnings, and statement of cash flows of VWI for the fiscal year ended
September 30, l999 (the "Audited Financial Statements").
(b) At or prior to the Closing, PI shall have filed its Form
10Q-SB for the period ended March 31, 2000 including unaudited financial
statements ("Interim Statements", the Audited Financial Statements and Interim
Statements collectively the "Financial Statements").
(c) The Financial Statements were prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the period involved, are true, correct and complete in all material
respects, are in accordance with the books and records of PI and fairly present
(and will fairly present) together with the notes thereto, the financial
position and results of operations of PI for the periods therein indicated.
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(d) Since the dates of the Financial Statements, there have
not been, nor prior to the Closing will there be, any material adverse changes
in the business or condition, financial or otherwise, of PI.
3.07 Filings. PI has delivered (or will deliver, prior to the Closing)
to VWI true, correct and complete copies of the Registration Statement
(including exhibits) together with each of its other reports to shareholders and
filings with the Commission for the year ended December 31, l999 and through the
date of the Closing. PI has duly and timely filed (and will, prior to the
Closing duly and timely file) all reports required to be filed by it under the
Securities Act of l933, as amended ("33 Act") and the 1934 Act (collectively the
"Federal Securities Laws"). None of the foregoing reports nor any reports sent
to the shareholders of PI contained any untrue statement of material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements in such reports, in light of the circumstances under which
they were made, not misleading.
3.08 Board Action. During the period from the date hereof until the
Closing there shall not be taken an action by the Board of Directors of PI
without the prior written consent of VWI in each instance.
VWI MERGER OBLIGATIONS
IV. REPRESENTATIONS AND WARRANTIES OF VWI
In order to induce PI to execute and perform this Agreement, VWI does
hereby represent, warrant, covenant and agree (which representations,
warranties, covenants and agreements shall be and be deemed to be continuing and
survive the execution and delivery of this Agreement, the Closing and the
Effective Time) as follows:
4.01 Organization and Good Standing. VWI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with full power and authority to own or lease its properties and to
carry on its business as presently being conducted and enter into and perform
each of the transactions, covenants and agreements provided for in this
Agreement.
4.02 Execution and Performance Authorized. The execution, delivery and
performance of this Agreement and all other documents and related agreements
contemplated hereunder, have been duly approved by VWI's board of directors and
shareholders; such execution and delivery and the consummation by VWI of the
transactions, covenants and agreements contemplated hereunder have been duly
authorized by the taking of all necessary corporate action; and no further
action is required to be taken by law and/or pursuant to the certificate of
incorporation, by-laws or otherwise of VWI to authorize the execution, delivery
and/or performance of this Agreement, and/or the taking of all action required
to be taken by VWI with respect to this Agreement and the consummation of the
transactions and performance of this Agreement and the other agreements
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contemplated hereunder. The Agreement and the other documents contemplated
hereunder, are valid and binding and fully enforceable against VWI in accordance
with their respective terms, subject, as to enforcement of remedies, to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the rights of creditors generally and the discretion of courts in
granting equitable remedies. No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any court or other
tribunal is required by VWI for the execution, delivery, or performance of this
Agreement and the other agreements referred to herein.
4.03 Absence of Litigation. There is no action, lawsuit, proceeding or
investigation of any kind or nature pending or, to its knowledge, threatened
against VWI before any court, tribunal or administrative agency or board which
it reasonably expects, individually or in the aggregate, to materially and
adversely: (a) affect the solvency of VWI, (b) affect its ability to perform
hereunder, or (c) render any one or more of this Agreement and/or any of the
agreements referred to herein and/or the transactions contemplated hereunder
void or voidable.
4.04 No Other Default. The execution and delivery of this Agreement and
the other agreements referred to herein, and the consummation of the
transactions contemplated hereunder will not conflict with or violate or require
any consent under and will not result in any breach or termination of
certificate of incorporation or by-laws of VWI, or any other agreement to which
VWI is a party or by which its properties are subject or by which it is bound.
VWI is not in violation of, or in default under, (i) any term or provision of
its constitutional documents; (ii) any material term or provision or any
financial covenant of any indenture, mortgage, contract, commitment or other
agreement or instrument to which it is a party or by which it or any or its
properties or business is or may be bound or affected; or (iii) any existing
applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over it or any of its
properties or business. VWI owns, possesses or has obtained all governmental and
other licenses, permits, certifications, registrations, approvals or consents
and other authorizations necessary to own or lease, as the case may be, and to
operate its properties and to conduct its business or operations as presently
conducted and all such governmental and other licenses, permits, certifications,
registrations, approvals, consents and other authorizations are outstanding and
in good standing, and there are no proceedings pending or, to the best of its
knowledge, threatened, or any basis therefore existing, seeking to cancel,
terminate or limit such licenses, permits, certifications, registrations,
approvals or consents or authorizations, or related to the breach or failure to
comply of VWI with any law, rule, regulation, judgment, order or decree;
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4.05 Permits and Filings. Except for the filing of the Certificate of
Merger, there is no requirement applicable to VWI to make any further filing
with, or to obtain any permit, authorization, consent or approval of, any
governmental or other regulatory authority as a condition of the lawful
consummation of the transactions contemplated under this Agreement.
4.06 Corporate Documents. VWI has furnished to PI true, correct and
complete copies of its certificate of incorporation, By-laws and minute book,
and a certificate of good standing from the state of Delaware dated within
thirty (30) days of the closing date. The minute book contains a record, which
is complete and accurate in all material respects, of all meetings and all
corporate actions of the shareholders and board of directors of VWI. VWI is not
in material violation or breach of, or in default with respect to, (a) any term
of its constitutional documents or any agreement to which it is a party or by
which its assets are bound, or (b) any law, rule, regulation, judgment, order or
decree of any governmental agency or court having jurisdiction over it or its
assets.
4.07 Capitalization. The authorized capital stock of VWI consists of
50,000,000 shares of common stock ("VWI Stock") of which 25,000,000 shares are
issued and outstanding ("Outstanding VWI Stock"). The shares of Outstanding VWI
Stock are duly authorized, validly issued, fully paid, and non-assessable. There
are no commitments, plans, arrangements to issue, options, warrants, security,
or other rights calling for the issuance of, any shares of capital stock or
other ownership interest in VWI or any security or other instrument convertible
into, exercisable for, or exchangeable for capital stock of or ownership in VWI.
4.08 Tax and Other Liabilities. VWI has no liability of any nature,
accrued, absolute or contingent, secured or unsecured including without
limitation liabilities for payroll and other employee taxes, federal, state,
local, or foreign taxes or liabilities to customers or suppliers, other than
liabilities which are reflected on the Financial Statement. Except for the
liabilities included on the Financial Statement, as of the date of such
Financial Statement, VWI had no liabilities, either fixed or contingent, which
would have been required to be recorded under GAAP as of such date, and to the
knowledge of VWI no such liabilities, other than liabilities arising in the
ordinary course of business and/or pursuant to this Agreement have accrued
and/or will accrue between such date and the Effective Time. VWI has filed all
federal, state, municipal and local tax returns (whether relating to income,
sales, franchise, withholding, real or personal property or otherwise) required
to be filed under the laws of the United States and all applicable states, and
has paid in full all taxes which are due pursuant to such returns or claimed to
be due by any taxing authority or otherwise due and owing. No penalties or other
charges are or will become due with respect to the late filing of any such
return. To the best of the knowledge of VWI, after due investigation, each such
tax return heretofore filed by VWI correctly and accurately reflects the amount
of its tax liability thereunder. VWI has withheld, collected and paid all other
levies, assessments, license fees and taxes to the extent required and, with
respect to payments, to the extent that the same have become due and payable;
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4.09 Litigation and Claims. There is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal), or investigation pending
or, or to the knowledge of VWI threatened, with respect to VWI or any of its
business, properties, or assets.
4.10 Properties. As of the Effective Time, VWI will have good title to
all properties and assets used in its business or owned by it free and clear of
all liens, claims, mortgages, security interests, pledges, charges, and
encumbrances.
4.11 Contracts and Other Instruments. VWI is not a party to nor it or
its assets bound by any agreement of any kind, nature or description except as
set forth in the Registration Statement. VWI is not in breach or violation of or
default under any contract or instrument to which VWI is a party and/or by which
its assets are bound; and no event has occurred which with the lapse of time or
action by a third party could result in a breach or violation of or default by
VWI under any contract or other instrument to which VWI is a party of by which
it or any of its assets are bound or affected, nor is there any court or
regulatory order pending against or affecting VWI and/or any of its assets. VWI
is not a party to any agreement performable in the future
4.12 Employees. VWI has no employees and no welfare benefit plans (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974
("ERISA")or otherwise of any kind, nature or description.
4.13 Pre Closing Activity. VWI shall not enter into or consummate any
transactions prior to the Closing other than in the ordinary course of business
and will pay no dividend, or increase the compensation of any officer, director
or employee and will not enter into any transaction or agreement which would
adversely affects its financial condition. VWI shall deliver to PI at or prior
to the Closing copies of any and all reports relating to the financial and/or
business condition of VWI which are created or published subsequent to the date
hereof together with any reports or communications sent to the stockholders of
VWI subsequent to the date hereof.
4.14 Accuracy. No statement, representation or warranty contained
herein, in any certificate delivered pursuant to this Agreement, the
Registration Statement and/or in any report filed with the Securities Exchange
Commission (the "Commission") contains or will contain any untrue statement of a
material fact or omits to state any material fact necessary to make such
statement, representation or warranty not misleading.
4.15 Purchase for Investment Purposes Only. The shareholders of VWI are
acquiring the PI Common Stock as a result of the Merger for investment purposes
only and not with the view to the resale or distribution thereof. Each of the
shareholders of VWI is an "accredited investor" under the regulations
promulgated under the 33 Act or otherwise meets one of the definitions for
persons entitled to acquire unregistered securities pursuant to an exemption
from registration under the 33 Act. Neither VWI nor its shareholders have
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received and/or relied upon any representations or warranties from PI other than
those contained in this Agreement and the attached schedules or exhibits hereto.
VWI represents and warrants that it and its shareholders have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investment in PI Common Stock. VWI and its shareholders
understand and acknowledge that the PI Common Stock has not been registered
under the Act or under any state securities act and are being issued to the
shareholders of VWI pursuant to an exemption from registration under the Act.
The reliance by PI upon such exemption is predicated upon the representations
and warranties of VWI contained herein. In this regard, VWI and its shareholders
understand and agrees that there may be affixed to the certificates representing
the shares of PI Common Stock acquired by the shareholders of VWI hereunder a
legend advising of the unregistered, restricted nature of the shares.
4.16 Certificate. The representations, warranties, covenants and
agreements of vwi contained in this agreement, including, without limitation,
those contained in this article iv, are true, accurate and correct in all
respects as of the date hereof and shall be true, accurate and correct and
complete, in all respects, as of the closing; and at the closing vwi shall
deliver to pi a certificate, executed by the chief executive officer of vwi
remaking, on behalf of vwi each of the representations, warranties, covenants
and agreements set forth in this agreement, including without limitation, those
set forth in this article iv hereof.
5.04 Indemnity.
(a) VWI does hereby agree to indemnify and hold harmless PI and its
employees, officers, directors and successors against and in respect of any and
all claims, suits, actions, proceedings (formal or informal), governmental
investigations, judgments, deficiencies, set-offs, damages, settlements,
liabilities, and reasonable legal and other expenses (including reasonable
attorneys fees and defense costs) as and when incurred arising out of or based
upon any breach by VWI of any representation, warranty, covenant, or agreement
of VWI contained in this Agreement;
6.03 VWI's Obligations at Closing.
At or prior to the Closing, VWI shall deliver or cause to be delivered
to PI, in form satisfactory to PI, the following:
(a) A true copy of the minutes of the meeting of the Board of
Directors of VWI adopting the Agreement and Plan of Merger and Merger,
recommending the Agreement and Plan of Merger and Merger to the shareholders of
VWI and authorizing PI's execution, delivery and performance of this Agreement;
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(b) A true copy of the notice of shareholders meeting and
proof of service thereof upon all VWI shareholders of record in accordance with
Delaware law together with the minutes of the shareholder's meeting evidencing
shareholder approval of the Plan of Merger and the execution, delivery and
performance of this Agreement; or, alternatively, a unanimous written consent
executed by all of the shareholders of VWI containing the foregoing approvals;
(c) An opinion of counsel to VWI reasonably acceptable to PI
with respect to such matters and in such form as shall be reasonably requested
by and acceptable to PI;
(d) Documentary proof reasonably acceptable to PI that all of
the liabilities of VWI of every kind, nature and description have been paid in
full as at and through the date of the Closing, except as may be excluded in
Schedule 6.03(d) hereto;
(e) All of the books and records of VWI;
(f) A certificate of good standing for VWI issued within
thirty (30) days prior to the Closing Date by the Secretary of State of
Delaware; and
(g) All other schedules, certificates and other documents
required by this Agreement to be delivered by VWI on or before Closing or the
Effective Time;
VWI. ABANDONMENT
7.01 Abandonment of Merger. The rights and obligations of the
Constituent Corporations under this Agreement may be terminated and the Merger
abandoned prior to the Effective Time by the mutual agreement of the Board of
Directors of both of the Constituent Corporations.
VWII. MISCELLANEOUS
8.01 Brokerage Fees. No party to this Agreement has consented to or
authorized any broker or agent to act on its behalf, directly or indirectly, as
a broker or finder in connection with the transaction contemplated by this
Agreement. In the event any claim is made for a broker's or finder's fee in
connection with the transactions contemplated hereunder, the party responsible
for retaining or securing said broker or finder shall be solely responsible for
the payment of any broker's or finder's fees incurred as a result thereof.
Further, the responsible party or parties shall indemnify the other parties
against any loss or liabilities by reason of such broker's or finder's fees.
8.02 Further Actions. At any time and from time to time, each party
agrees, at its expense, to take such actions and to execute and deliver such
documents as may be reasonably necessary to effectuate the purposes of this
Agreement.
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8.03 Survival. Except as otherwise provided herein, the covenants,
agreements, representations, and warranties contained in or made pursuant to
this Agreement shall survive the Effective Time and any delivery of
consideration at Closing or the Effective Time irrespective of any investigation
made by or on behalf of any party.
8.04 Modification. This Agreement and the related instruments and
agreements hereto set forth the entire understanding of the parties with respect
to the subject matter hereof, supersede all existing agreements among them
concerning such subject matter, and may be modified only by a written instrument
duly executed by all of the parties hereto.
8.05 Notices. All notices, elections, reports or other correspondence
required or permitted hereunder shall be in writing and deemed to have been
properly given or delivered when mailed by certified mail, return receipt
requested, postage prepaid, delivered by overnight express courier, delivery
fees prepaid, or transmitted by fax with receipt confirmed, to the party to whom
directed at the below specified addresses:
If to PI: Daniel L. Hodges
Peppercorn Industrial Corporation
2102 N. Donner Ave.
Tucson, AZ 85749
With a copy to: Kevin Sherlock, Esq.
Sherlock Consulting Corp.
4042 N. Pontatoc Rd.
Tucson, AZ 85718
If to VWI: Michael K. Graye
Vinex Wines, Inc.
11 East 44th Street
Suite 504
New York, NY 10017
With a copy to: Stan Moskowitz
Moskowitz, Altman & Hughes
11 East 44th Street
Suite 504
New York, NY 10017
Any such notice shall be deemed given three days after deposit with the mail,
one day following delivery thereof to an overnight express courier or upon
confirmation of receipt when sent by fax. The address of a party may be changed
in accordance with the notice provisions of this section.
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8.06 Waiver. Any waiver by any party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions will not be considered a waiver, or
deprive that party, of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
8.07 Binding Effect. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, and in addition shall inure to the benefit of the
indemnitees and their respective successors, assigns, heirs, and personal
representatives.
8.08 No Third-Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement (except as provided in Section 8.07).
8.09 Severability and Reformation. If any provision of this Agreement
is invalid, illegal, or unenforceable, the balance of this Agreement shall
remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons and
circumstances, in either case unless the result thereof would preclude the
consummation in all material respects of the Merger contemplated by this
Agreement and the associated transactions or result in an unjust modification of
the balance of rights and obligations hereunder. To the extent provided in this
section, a court having jurisdiction of a matter involving the interpretation of
this Agreement shall be authorized to reform this Agreement to the minimum
extent necessary to accomplish the objectives of this section.
8.10 Headings. The headings of this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
8.11 Governing Law. To the extent permitted by law, this Agreement
shall be governed by and construed in accordance with the laws of the state of
Nevada, without giving effect to conflict of laws. To the maximum extent
permitted by law and subject to the provisions of Section 8.14 hereof, any
action or proceeding initiated by any party to this Agreement, any indemnitee or
any other person claiming rights under this Agreement shall be brought in an
appropriate state or federal court in Las Vegas, Nevada, and any person claiming
rights under this agreement consents to the jurisdiction and proper venue of
such forum.
8.12 Separate Counterparts. This Agreement may be executed in several
identical counterparts, each one of which shall be considered an original and
all of which when taken together shall constitute but one instrument.
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8.13 Incorporation of Recitals, Exhibits and Schedules. All related
instruments and agreements executed in connection herewith are incorporated
herein by this reference and expressly made a part of this Agreement.
8.14 Arbitration. Except in cases where the remedy of preliminary
injunction is reasonably sought by a party because of the irreparability and
immediacy of the harm alleged to be caused or threatened, in the event there
shall arise any dispute or claim in law or equity arising out of this Agreement
or any breach thereof or any resulting transaction between the parties under
this Agreement and if such dispute cannot be resolved through negotiation, the
parties agree that such dispute shall be submitted to arbitration under the
rules and regulations of the American Arbitration Association then obtaining.
The arbitration shall be held in Las Vegas, Nevada, before a single arbitrator.
SIGNITURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date of the day and year first above written.
Vinex Wines, Inc.
June 12, 2000
By_________________________
Michael K. Graye, President
Peppercorn Industrial Corporation
June 12, 2000
By_________________________
Daniel L. Hodges, President
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