SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: October 30, 1998
American General Ventures, Inc.
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(Exact name of Registrant as specified in its charter)
Commission file number: 0-8632
Nevada 11-2712721
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
3650 Austin Bluffs Parkway, Suite 138, Colorado Springs, CO 80918
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
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(719) 548-1616
not applicable
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former name or former address, if applicable
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ITEM 5. Other Events
AGREEMENT AND PLAN OF MERGER
BETWEEN
AMERICAN GENERAL VENTURES, INC.
AND
NUCLEUS HOLDING CORP.
October 30, 1998
TABLE OF CONTENTS
1. Definitions
2. Basic Transaction
(a) The Merger
(b) The Closing
(c) Actions at the Closing
(d) Effect of Merger
(e) Procedure for Payment
(f) Closing of Transfer Records
3. Representations and Warranties of the Target
(a) Organization, Qualification, and Corporate Power
(b) Capitalization
(c) Authorization of Transaction
(d) Noncontravention
(e) Financial Statements
(f) Events Subsequent to Most Recent Fiscal Quarter End
(g) Undisclosed Liabilities
(h) Brokers' Fees
(i) Continuity of Business Enterprise
4. Representations and Warranties of the Buyer
(a) Organization, Qualification, and Corporate Power
(b) Capitalization
(c) Authorization of Transaction
(d) Noncontravention
(e) Filings with the SEC
(f) Financial Statements
(g) Events Subsequent to Most Recent Fiscal Quarter End
(h) Undisclosed Liabilities
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(i) Employment Agreements
(j) Brokers' Fees
(k) Continuity of Business Enterprise
(l) Disclosure
5. Covenants
(a) General
(b) Notices and Consents
(c) Regulatory Matters and Approvals
(d) [Intentionally Omitted]
(e) Operation of Target Business
(f) Operation of Buyer Business
(g) Full Buyer Access
(h) Full Target Access
(i) Notice of Developments
(j) Target Exclusivity
(k) Buyer Exclusivity
(l) Insurance and Indemnification
(m) Compliance with the Securities Act
(n) Report on Form 8-K
(o) Continuity of Business Enterprise
6. Conditions to Obligation to Close
(a) Conditions to Obligation of the Buyer
(b) Conditions to Obligation of the Target
7. Termination
(a) Termination of Agreement
(b) Effect of Termination
8. Miscellaneous
(a) Survival
(b) Press Releases and Public Announcements
(c) No Third Party Beneficiaries
(d) Entire Agreement
(e) Succession and Assignment
(f) Counterparts
(g) Headings
(h) Notices
(i) Governing Law
(j) Amendments and Waivers
(k) Severability
(l) Expenses
(m) Construction
(n) Incorporation of Exhibits and Schedules
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ITEM 5. Other Events
AGREEMENT AND PLAN OF MERGER
Agreement entered into as of October 28, 1998 by and between American
General Ventures, Inc., a Nevada corporation (the "Buyer"), and Nucleus Holding
Corporation, an Illinois corporation (the "Target"). The Buyer and the Target
are referred to collectively herein as the "Parties."
This Agreement contemplates a tax-free merger of the Target with and into
the Buyer in a reorganization pursuant to Code ss.368(a)(1)(A). The Target
Stockholder will receive capital stock in the Buyer in exchange for their
capital stock in the Target.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. Definitions.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Buyer" has the meaning set forth in the preface above.
"Buyer-owned Share" means any Target Share that the Buyer owns
beneficially.
"Buyer Common Share" means any share of the Common Stock, $.001 par value
per share, of the Buyer.
"Buyer Preferred Share" means any share of Preferred Stock of the Buyer.
"Buyer Warrant" means any warrant to purchase a Buyer-owned Share.
"Closing" has the meaning set forth in ss.2(b) below.
"Closing Date" has the meaning set forth in ss.2(b) below.
"Confidential Information" means any information concerning the businesses
and affairs of the Target and its Subsidiaries that is not already generally
available to the public.
"Conversion Ratio" has the meaning set forth in ss.2(d)(v) below.
"Definitive Buyer Proxy Materials" means the definitive proxy materials
relating to the Special Buyer Meeting.
"Disclosure Schedule" has the meaning set forth in ss.3 below.
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"Dissenting Share" means any Target Share which any stockholder who or
which has exercised his or its appraisal rights under the Illinois General
Corporation Law holds of record.
"Effective Time" has the meaning set forth in ss.2(d)(i) below.
"Exchange Agent" has the meaning set forth in ss.2(e) below.
"Financial Statements" has the meaning set forth in ss.3(e) below.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"Illinois Certificate of Merger" has the meaning set forth in ss.2(c)
below.
"Illinois General Corporation Law" means the Business Corporation Act of
1983 of the State of Illinois, as amended.
"IRS" means the Internal Revenue Service.
"Knowledge" means actual knowledge without independent investigation.
"Merger" has the meaning set forth in ss.2(a) below.
"Most Recent Fiscal Quarter End" has the meaning set forth in ss.4(f)
below.
"Nevada Certificate of Merger" has the meaning set forth in ss.2(c) below.
"Nevada General Corporation Law" means the General Corporation Law of the
State of Nevada as amended.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization,
or a governmental entity (or any department, agency, or political subdivision
thereof).
"Public Report" has the meaning set forth in ss.4(e) below.
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"Requisite Buyer Stockholder Approval" means the affirmative vote of the
holders of a majority of the Buyer Shares in favor of this Agreement and the
Merger.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for taxes not yet due and payable or for taxes that the
taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Special Buyer Meeting" has the meaning set forth in ss.5(c)(ii) below.
"Subsidiary" means any corporation with respect to which a specified Person
(or a Subsidiary thereof) owns a majority of the common stock or has the power
to vote or direct the voting of sufficient securities to elect a majority of the
directors.
"Surviving Corporation" has the meaning set forth in ss.2(a) below.
"Target" has the meaning set forth in the preface above.
"Target Share" means any share of the Common Stock, no par value per share,
of the Target.
"Target Stockholder" means any Person who or which holds any Target Shares.
2. Basic Transaction.
(a) The Merger. On and subject to the terms and conditions of this
Agreement, the Target will merge with and into the Buyer (the "Merger") at the
Effective Time. The Buyer shall be the corporation surviving the Merger (the
"Surviving Corporation"). Immediately following the Merger, the Buyer shall
change its name to Nucleus Holding Corporation.
(b) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Target's general
counsel in Chicago, Illinois commencing at 9:00 a.m. local time on the second
business day following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
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(other than conditions with respect to actions the respective Parties will take
at the Closing itself) or such other date as the Parties may mutually determine
(the "Closing Date"); provided, however, that the Closing Date shall be no later
than December 31, 1998.
(c) Actions at the Closing. At the Closing, (i) the Target will deliver to
the Buyer the various certificates, instruments, and documents referred to in
ss.6(a) below, (ii) the Buyer will deliver to the Target the various
certificates, instruments, and documents referred to in ss.6(b) below, (iii) the
Buyer and the Target will file with the Secretary of State of the State of
Nevada a Certificate of Merger in a form customarily accepted by the Secretary
of State of the State of Nevada (the "Nevada Certificate of Merger"), (iv) the
Buyer and the Target will file with the Secretary of State of the State of
Illinois a Certificate of Merger in a form customarily accepted by the Secretary
of State of the State of Illinois (the "Illinois Certificate of Merger"), and
(v) the Buyer will deliver to the Exchange Agent in the manner provided below in
this ss.2 the certificate evidencing the Buyer Shares issued in the Merger.
(d) Effect of Merger.
(i) General. The Merger shall become effective at the time (the
"Effective Time") the Buyer and the Target file the Certificate of Merger
and Articles of Merger with the Secretary of State of the State of Illinois
and the Secretary of State of the State of Nevada or such later time as
specified in the Certificate of Merger and Articles of Merger. The Merger
shall have the effect set forth in the Nevada General Corporation Law and
the Illinois General Corporation Law. The Surviving Corporation may, at any
time after the Effective Time, take any action (including executing and
delivering any document) in the name and on behalf of either the Buyer or
the Target in order to carry out and effectuate the transactions
contemplated by this Agreement.
(ii) Certificate of Incorporation. The Certificate of Incorporation of
the Buyer in effect at and as of the Effective Time will remain the
Certificate of Incorporation of the Surviving Corporation without any
modification or amendment in the Merger.
(iii) Bylaws. The Bylaws of the Buyer in effect at and as of the
Effective Time will remain the Bylaws of the Surviving Corporation without
any modification or amendment in the Merger.
(iv) Directors and Officers.
(a) prior to the Effective Time, AGV will amend its Bylaws to
provide for up to ten directors;
(b) prior to the Effective Time, AGV shall use its best efforts
to cause Christopher S. Walker to resign as a director;
(c) AGV shall use its best efforts to cause John Paulsen and
three persons designated by Mr. Paulsen mutually acceptable
to AGV and Nucleus to be duly appointed or elected to the
Board of Directors of AGV, effective at the Effective Time
or as soon as practicable thereafter. AGV and Nucleus hereby
agree that, Jeffrey Wescott, Mark Fera and Stephen Calk are
acceptable to serve as directors of AGV.
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(d) AGV and Nucleus shall use their reasonable best efforts to
cause John C. Paulsen to be appointed President and Chief
Executive Officer and Steven H. Walker to remain a Chairman
of the Board of Directors and to be appointed as Vice
President of Business Development of AGV effective at the
Effective Time or as soon as practicable thereafter.
(v) Conversion of Target Shares. At and as of the Effective Time, (A)
each Target Share (other than any Dissenting Share or Buyer-owned Share)
shall be converted into the right to receive 41,415.405 Buyer Shares (the
ratio of 41,415.405 Buyer Shares to one Target Share is referred to herein
as the "Conversion Ratio"), (B) each Dissenting Share shall be converted
into the right to receive payment from the Surviving Corporation with
respect thereto in accordance with the provisions of the Illinois General
Corporation Law, and (C) each Buyer-owned Share shall be canceled;
provided, however, that the Conversion Ratio shall be subject to equitable
adjustment in the event of any stock split, stock dividend, reverse stock
split, or other change in the number of Target Shares outstanding. No
Target Share shall be deemed to be outstanding or to have any rights other
than those set forth above in this ss.2(d)(v) after the Effective Time.
(vi) Buyer Shares. Each Buyer Share issued and outstanding at and as
of the Effective Time will remain issued and outstanding.
(vii) Buyer Warrants. Each Buyer Warrant outstanding at and as of the
Effective Time will remain outstanding and in full force and effect,
provided, however, (A) that, in the event of any reverse stock split, the
price at which such Buyer Warrant is exercisable shall not be adjusted
(while the number of shares which may be received upon exercise of such
Buyer Warrant shall be adjusted downward), and (B) that in the event of any
exercise of such Buyer Warrant at any time after the date hereof, Target
may issue to any person it designates that number of Common Shares that,
when issued and when added to the number of other Common Shares then held
by Capital One, Inc., an Illinois corporation ("CapitalOne"), its designees
or its transferees, is in the same proportion to the total number of shares
outstanding immediately after the exercise of the Buyer Warrant, as the
number of Common Shares held by CapitalOne, its designees or its
transferees immediately prior to the exercise of such Buyer Warrant is to
the total number of shares outstanding immediately prior to the exercise of
such Buyer Warrant.
(e) Procedure for Payment.
(i) Immediately after the Effective Time, (A) the Buyer will
furnish to Illinois Stock Transfer Company of Chicago, Illinois (the
"Exchange Agent") a stock certificate (issued in the name of the
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Exchange Agent or its nominee) representing that number of Buyer
Shares equal to the product of (I) the Conversion Ratio times (II) the
number of outstanding Target Shares (other than any Dissenting Shares
and Buyer-owned Shares) and (B) the Buyer will cause the Exchange
Agent to mail a letter of transmittal (with instructions for its use)
to each record holder of outstanding Target Shares for the holder to
use in surrendering the certificates which represented his or its
Target Shares in exchange for a certificate representing the number of
Buyer Shares to which he or it is entitled.
(ii) The Buyer will not pay any dividend or make any distribution
on Buyer Shares (with a record date at or after the Effective Time) to
any record holder of outstanding Target Shares until the holder
surrenders for exchange his or its certificates which represented
Target Shares. The Buyer instead will pay the dividend or make the
distribution to the Exchange Agent in trust for the benefit of the
holder pending surrender and exchange. The Buyer may cause the
Exchange Agent to invest any cash the Exchange Agent receives from the
Buyer as a dividend or distribution in one or more of the investments
permitted of banks and transfer companies ; provided, however, that
the terms and conditions of the investments shall be such as to permit
the Exchange Agent to make prompt payments of cash to the holders of
outstanding Target Shares as necessary. The Buyer may cause the
Exchange Agent to pay over to the Buyer any net earnings with respect
to the investments, and the Buyer will replace promptly any cash which
the Exchange Agent loses through investments. In no event, however,
will any holder of outstanding Target Shares be entitled to any
interest or earnings on the dividend or distribution pending receipt.
(iii) The Buyer may cause the Exchange Agent to return any Buyer
Shares and dividends and distributions thereon remaining unclaimed 180
days after the Effective Time, and thereafter each remaining record
holder of outstanding Target Shares shall be entitled to look to the
Buyer (subject to abandoned property, escheat, and other similar laws)
as a general creditor thereof with respect to the Buyer Shares and
dividends and distributions thereon to which he or it is entitled upon
surrender of his or its certificates.
(iv) The Buyer shall pay all charges and expenses of the Exchange
Agent.
(f) Closing of Transfer Records. After the close of business on
the Closing Date, transfers of Target Shares outstanding
prior to the Effective Time shall not be made on the stock
transfer books of the Surviving Corporation.
3. Representations and Warranties of the Target. The Target represents and
warrants to the Buyer that the statements contained in this ss.3 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.3), except as set
forth in the disclosure schedule accompanying this Agreement and initialed by
the Parties (the "Disclosure Schedule"). The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this ss.3.
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(a) Organization, Qualification, and Corporate Power. Each of the Target
and its Subsidiaries is a corporation duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation. Each of
the Target and its Subsidiaries is duly authorized to conduct business and is in
good standing under the laws of each jurisdiction where such qualification is
required except where the lack of such qualification would not have a material
adverse effect on the financial condition of the Target and its Subsidiaries
taken as a whole or on the ability of the Parties to consummate the transactions
contemplated by this Agreement. Each of the Target and its Subsidiaries has full
corporate power and authority to carry on the businesses in which it is engaged
and to own and use the properties owned and used by it.
(b) Capitalization. The entire authorized capital stock of the Target
consists of 1,000 Target Shares, all of which Target Shares are issued and
outstanding. All of the issued and outstanding Target Shares have been duly
authorized and are validly issued, fully paid, and nonassessable. There are no
outstanding or authorized options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that could require the Target to issue, sell, or otherwise cause to become
outstanding any of its capital stock. There are no outstanding or authorized
stock appreciation, phantom stock, profit participation, or similar rights with
respect to the Target.
(c) Authorization of Transaction. The Target has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Target, enforceable in
accordance with its terms and conditions.
(d) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which any of the Target and its Subsidiaries is
subject or any provision of the charter or bylaws of any of the Target and its
Subsidiaries or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument or other arrangement to which
any of the Target and its Subsidiaries is a party or by which it is bound or to
which any of its assets is subject (or result in the imposition of any Security
Interest upon any of its assets) except where the violation, conflict, breach,
default, acceleration, termination, modification, cancellation, failure to give
notice, or Security Interest would not have a material adverse effect on the
financial condition of the Target and its Subsidiaries taken as a whole or on
the ability of the Parties to consummate the transactions contemplated by this
Agreement. Other than in connection with the provisions of the Illinois General
Corporation Law, the Nevada General Corporation Law, the Securities Exchange
Act, the Securities Act, and the state securities laws, none of the Target and
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its Subsidiaries needs to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or governmental agency
in order for the Parties to consummate the transactions contemplated by this
Agreement, except where the failure to give notice, to file, or to obtain any
authorization, consent, or approval would not have a material adverse effect on
the Target and its Subsidiaries taken as a whole or on the ability of the
Parties to consummate the transactions contemplated by this Agreement.
(e) Financial Statements. The Financial Statements of the Target for the
fiscal quarter ended June 30, 1998, and for the fiscal year ended December 31,
1997, (collectively, the "Financial Statement") have been prepared in accordance
with GAAP applied on a consistent basis throughout the periods covered thereby,
and present fairly the financial condition of the Target and its Subsidiaries as
of the indicated dates and the results of operations of the Target and its
Subsidiaries for the indicated periods; provided, however, that the interim
statements are subject to normal year-end adjustments.
(f) Events Subsequent to Most Recent Fiscal Quarter End. Since the Most
Recent Fiscal Quarter End, there has not been any material adverse change in the
financial condition of the Target and its Subsidiaries taken as a whole.
(g) Undisclosed Liabilities. None of the Target and its Subsidiaries has
any liability (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any liability for
taxes, except for (i) liabilities set forth on the face of the balance sheet
dated as of June 30, 1998 (rather than in any notes thereto) and (ii)
liabilities which have arisen after June 30, 1998 in the Ordinary Course of
Business (none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty, tort,
infringement, or violation of law).
(h) Brokers' Fees. None of the Target and its Subsidiaries has any
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement.
(i) Continuity of Business Enterprise. The Target operates at least one
significant historic business line, or owns at least a significant portion of
its historic business assets, in each case within the meaning of Reg.
ss.1.368-1(d).
4. Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Target that the statements contained in this ss.4 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.4), except as set
forth in the Disclosure Schedule. The Disclosure Schedule will be arranged in
paragraphs corresponding to the numbered and lettered paragraphs contained in
this ss.4.
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(a) Organization, Qualification and Corporate Power. Each of the Buyer and
its subsidiaries is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation. Each of the
Buyer and its Subsidiaries is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification is
required except where the lack of such qualification would not have a material
adverse effect on the financial condition of the Buyer and its Subsidiaries
taken as a whole or on the ability of the Parties to consummate the transactions
contemplated by this Agreement. Each of the Buyer and its Subsidiaries has full
corporate power and authority to carry on the businesses in which it is engaged
and to own and use the properties owned and used by it.
(b) Capitalization. The entire authorized capital stock of the Buyer
consists of (i) 900,000,000 Buyer Common Shares, of which 11,681,268 Buyer
Common Shares are issued and outstanding, and no Buyer Common Shares are held in
treasury, (ii) 8,000,000 Buyer Preferred Shares, none of which Buyer Preferred
Shares are issued or outstanding, and (iii) 3,256,500 Buyer Warrants. All of the
Buyer Common Shares to be issued in the Merger have been duly authorized and,
upon consummation of the Merger, will be validly issued, fully paid, and
nonassessable. There are no other outstanding or authorized options, warrants,
purchase rights, subscription rights, conversion rights, exchange rights, or
other contracts or commitments that could require the Buyer to issue, sell, or
otherwise cause to become outstanding any of its capital stock. There are no
outstanding or authorized stock appreciation, phantom stock, profit
participation, or similar rights with respect to the Buyer.
(c) Authorization of Transaction. The Buyer has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder; provided, however, that the
Buyer cannot consummate the Merger unless and until it receives the Requisite
Buyer Stockholder Approval. This Agreement constitutes the valid and legally
binding obligation of the Buyer, enforceable in accordance with its terms and
conditions.
(d) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any provision of
the charter or bylaws of the Buyer or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument or other arrangement
to which the Buyer is a party or by which it is bound or to which any of its
assets is subject, except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, or failure to give notice
would not have a material adverse effect on the ability of the Parties to
consummate the transactions contemplated by this Agreement. Other than in
connection with the provisions of the Illinois General Corporation Law, the
Nevada General Corporation Law, the Securities Exchange Act, the Securities Act,
and the state securities laws, the Buyer does not need to give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement, except where the failure to give
notice, to file, or to obtain any authorization, consent, or approval would not
have a material adverse effect on the ability of the Parties to consummate the
transactions contemplated by this Agreement.
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(e) Filings with the SEC. The Buyer has made all filings with the SEC that
it has been required to make under the Securities Act and the Securities
Exchange Act (collectively the "Public Reports"). Each of the Public Reports has
complied with the Securities Act and the Securities Exchange Act in all material
respects. None of the Public Reports, 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 made therein, in light of the
circumstances under which they were made, not misleading. The Buyer has
delivered to the Buyer a correct and complete copy of each Public Report
(together with all exhibits and schedules thereto and as amended to date).
(f) Financial Statements. The Target has filed Quarterly Reports on Form
10-Q for the fiscal quarters ended September 30, 1998 (the "Most Recent Fiscal
Quarter End"), June 30, 1998, and March 31, 1998, and an Annual Report on Form
10-K for the fiscal year ended December 31, 1997. The financial statements
included in or incorporated by reference into these Public Reports (including
the related notes and schedules) have been prepared in accordance with GAAP
applied on a consistent basis throughout the periods covered thereby, and
present fairly the financial condition of the Buyer and its Subsidiaries as of
the indicated dates and the results of operations of the Buyer and its
Subsidiaries for the indicated periods; provided, however, that the interim
statements are subject to normal year-end adjustments.
(g) Events Subsequent to Most Recent Fiscal Quarter End. Since the Most
Recent Fiscal Quarter End, there has not been any material adverse change in the
financial condition of the Buyer and its Subsidiaries taken as a whole.
(h) Undisclosed Liabilities. None of the Buyer and its Subsidiaries has any
liability (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any liability for
taxes, except for (i) liabilities set forth on the face of the balance sheet
dated as of the Most Recent Fiscal Quarter End (rather than in any notes
thereto) and (ii) liabilities which have arisen after the Most Recent Fiscal
Quarter End in the Ordinary Course of Business (none of which results from,
arises out of, relates to, is in the nature of, or was caused by any breach of
contract, breach of warranty, tort, infringement, or violation of law).
(i) Employment Agreements. There are no employment agreements or
arrangements of any kind between Buyer and any of its executive officers or key
employees which cannot be terminated upon not more than two weeks notice.
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(j) Brokers' Fees. The Buyer does not have any liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which any of the Target and its
Subsidiaries could become liable or obligated.
(k) Continuity of Business Enterprise. It is the present intention of the
Buyer to continue at least one significant historic business line of the Target,
or to use at least a significant portion of the Target's historic business
assets in a business, in each case within the meaning of Reg. ss.1.368-1(d).
(l) Disclosure. The Registration Statement and the Definitive Buyer Proxy
Materials will comply with the Securities Act and the Securities Exchange Act in
all material respects. The Registration Statement and the Definitive Buyer Proxy
Materials will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made therein, in
the light of the circumstances under which they will be made, not misleading;
provided, however, that the Buyer makes no representation or warranty with
respect to any information that the Target will supply specifically for use in
the Registration Statement and the Definitive Buyer Proxy Materials. None of the
information that the Buyer will supply specifically for use in the Definitive
Target Proxy Materials will contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they will be made, not
misleading.
5. Covenants. The Parties agree as follows with respect to the period from
and after the execution of this Agreement.
(a) General. Each of the Parties will use its best efforts to take all
action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
ss.6 below).
(b) Notices and Consents. The Target will give any notices (and will cause
each of its Subsidiaries to give any notices) to third parties, and will use its
best efforts to obtain (and will cause each of its Subsidiaries to use its
reasonable best efforts to obtain) any third party consents, that the Buyer
reasonably may request in connection with the matters referred to in ss.3(d)
above.
(c) Regulatory Matters and Approvals. Each of the Parties will (and the
Target will cause each of its Subsidiaries to) give any notices to, make any
filings with, and use its best efforts to obtain any authorizations, consents,
and approvals of governments and governmental agencies in connection with the
matters referred to in ss.3(d) and ss.4(d) above. Without limiting the
generality of the foregoing:
(i) Securities Act, Securities Exchange Act, and State Securities
Laws. The Buyer will prepare and file with the SEC preliminary proxy
materials under the Securities Exchange Act relating to the Special Buyer
Meeting. The Buyer will use its best efforts to respond to the comments of
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the SEC thereon and will make any further filings (including amendments and
supplements) in connection therewith that may be necessary, proper, or
advisable. The Target will provide the Buyer, with whatever information and
assistance in connection with the foregoing filings that the Buyer
reasonably may request. The Buyer will take all actions that may be
necessary, proper, or advisable under state securities laws in connection
with the offering and issuance of the Buyer Shares.
(ii) Special Buyer Meeting. The Buyer will call a special meeting of
its stockholders (the "Special Buyer Meeting") as soon as practicable in
order that the stockholders may consider and vote upon the adoption of this
Agreement and the approval of the Merger in accordance with the Nevada
General Corporation Law. The Buyer will mail the Definitive Buyer Proxy
Materials to its stockholders simultaneously and as soon as practicable.
The Definitive Buyer Proxy Materials will contain the affirmative
recommendation of the board of directors of Buyer in favor of the adoption
of this Agreement and the approval of the Merger; provided, however, that
no director or officer of Buyer shall be required to violate any fiduciary
duty or other requirement imposed by law in connection therewith.
(d) [Intentionally Omitted]
(e) Operation of Target Business. The Target will not (and will not cause
or permit any of its Subsidiaries to) engage in any practice, take any action,
or enter into any transaction outside the Ordinary Course of Business. Without
limiting the generality of the foregoing:
(i) none of the Target and its Subsidiaries will authorize or effect
any change in its charter or bylaws;
(ii) none of the Target and its Subsidiaries will grant any options,
warrants, or other rights to purchase or obtain any of its capital stock or
issue, sell, or otherwise dispose of any of its capital stock (except upon
the conversion or exercise of options, warrants, and other rights currently
outstanding);
(iii) none of the Target and its Subsidiaries will declare, set aside,
or pay any dividend or distribution with respect to its capital stock
(whether in cash or in kind), or redeem, repurchase, or otherwise acquire
any of its capital stock;
(iv) none of the Target and its Subsidiaries will issue any note,
bond, or other debt security or create, incur, assume, or guarantee any
indebtedness for borrowed money or capitalized lease obligation outside the
Ordinary Course of Business;
(v) none of the Target and its Subsidiaries will impose any Security
Interest upon any of its assets outside the Ordinary Course of Business;
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(vi) none of the Target and its Subsidiaries will make any capital
investment in, make any loan to, or acquire the securities or assets of any
other Person outside the Ordinary Course of Business;
(vii) none of the Target and its Subsidiaries will make any change in
employment terms for any of its directors, officers, and employees outside
the Ordinary Course of Business; and
(viii) none of the Target and its Subsidiaries will commit to any of
the foregoing.
(f) Operation of Buyer Business. The Buyer will not (and will not cause or
permit any of its Subsidiaries to) engage in any practice, take any action, or
enter into any transaction outside the Ordinary Course of Business. Without
limiting the generality of the foregoing:
(i) none of the Buyer and its Subsidiaries will authorize or effect
any change in its charter or bylaws;
(ii) none of the Buyer and its Subsidiaries will grant any options,
warrants, or other rights to purchase or obtain any of its capital stock or
issue, sell, or otherwise dispose of any of its capital stock (except upon
the conversion or exercise of options, warrants, and other rights currently
outstanding);
(iii) none of the Buyer and its Subsidiaries will declare, set aside,
or pay any dividend or distribution with respect to its capital stock
(whether in cash or in kind), or redeem, repurchase, or otherwise acquire
any of its capital stock;
(iv) none of the Buyer and its Subsidiaries will issue any note, bond,
or other debt security or create, incur, assume, or guarantee any
indebtedness for borrowed money or capitalized lease obligation outside the
Ordinary Course of Business;
(v) none of the Buyer and its Subsidiaries will impose any Security
Interest upon any of its assets outside the Ordinary Course of Business;
(vi) none of the Buyer and its Subsidiaries will make any capital
investment in, make any loan to, or acquire the securities or assets of any
other Person outside the Ordinary Course of Business;
(vii) none of the Buyer and its Subsidiaries will make any change in
employment terms for any of its directors, officers, and employees outside
the Ordinary Course of Business; and
(viii) none of the Buyer and its Subsidiaries will commit to any of
the foregoing.
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(g) Full Buyer Access. The Target will (and will cause each of its
Subsidiaries to) permit representatives of the Buyer to have full access at all
reasonable times, and in a manner so as not to interfere with the normal
business operations of the Target and its Subsidiaries, to all premises,
properties, personnel, books, records (including tax records), contracts, and
documents of or pertaining to each of the Target and its Subsidiaries. The Buyer
will treat and hold as such any Confidential Information it receives from any of
the Target and its Subsidiaries in the course of the reviews contemplated by
this ss.5(g), will not use any of the Confidential Information except in
connection with this Agreement, and, if this Agreement is terminated for any
reason whatsoever, agrees to return to the Target all tangible embodiments (and
all copies) thereof which are in its possession.
(h) Full Target Access. The Buyer will (and will cause each of its
Subsidiaries to) permit representatives of the Target to have full access at all
reasonable times, and in a manner so as not to interfere with the normal
business operations of the Buyer and its Subsidiaries, to all premises,
properties, personnel, books, records (including tax records), contracts, and
documents of or pertaining to each of the Buyer and its Subsidiaries. The Buyer
will treat and hold as such any Confidential Information it receives from any of
the Buyer and its Subsidiaries in the course of the reviews contemplated by this
ss.5(h), will not use any of the Confidential Information except in connection
with this Agreement, and, if this Agreement is terminated for any reason
whatsoever, agrees to return to the Buyer all tangible embodiments (and all
copies) thereof which are in its possession.
(i) Notice of Developments. Each Party will give prompt written notice to
the other of any material adverse development causing a breach of any of its own
representations and warranties in ss.3 and ss.4 above. No disclosure by any
Party pursuant to this ss.5(i), however, shall be deemed to amend or supplement
the Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(j) Target Exclusivity. The Target will not (and will not cause or permit
any of its Subsidiaries to) solicit, initiate, or encourage the submission of
any proposal or offer from any Person relating to the acquisition of all or
substantially all of the capital stock or assets of any of the Target and its
Subsidiaries (including any acquisition structured as a merger, consolidation,
or share exchange); provided, however, that the Target, its Subsidiaries, and
their directors and officers will remain free to participate in any discussions
or negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
Person to do or seek any of the foregoing to the extent their fiduciary duties
may require. The Target shall notify the Buyer immediately if any Person makes
any proposal, offer, inquiry, or contact with respect to any of the foregoing.
(k) Buyer Exclusivity. The Buyer will not (and will not cause or permit any
of its Subsidiaries to) solicit, initiate, or encourage the submission of any
proposal or offer from any Person relating to the acquisition of all or
substantially all of the capital stock or assets of any of the Buyer and its
Subsidiaries (including any acquisition structured as a merger, consolidation,
or share exchange); provided, however, that the Buyer, its Subsidiaries, and
their directors and officers will remain free to participate in any discussions
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or negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
Person to do or seek any of the foregoing to the extent their fiduciary duties
may require. The Buyer shall notify the Target immediately if any Person makes
any proposal, offer, inquiry, or contact with respect to any of the foregoing.
(l) Insurance and Indemnification.
(i) From the after the Effective Time, AGV and the Surviving
Corporation (collectively, the "Indemnifying Party") shall indemnify,
defend and hold harmless, to the full extent a corporation is permitted
under the Nevada Law to indemnify its own directors, officers and agents,
each person who is now, or has been at any time prior to the date of this
Agreement or who becomes prior to the Effective Time an officer or director
of Nucleus, and for purposes of clause (ii) below any agent of Nucleus
acting at the request of its officers or directors in connection with the
negotiation, execution and delivery of this Agreement and the consummation
of the Merger (the "Indemnified Parties") against (i) all losses, claims,
damages, costs, reasonable expenses, liabilities or judgments or amounts
("Indemnified Liabilities") that are paid in settlement with the approval
of the Indemnifying Party (which approval shall not be unreasonably
withheld) of or in connection with any claim, action, suit, proceeding or
investigation based in whole or in part on or arising in whole or in part
out of the fact that such person is or was a director or officer of
Nucleus, whether pertaining to any matter existing now or occurring at or
prior to the Effective Time and whether asserted or claimed prior to or at
or after the Effective Time, and (ii) all Indemnified Liabilities based in
whole or in part on or arising in whole or in part out of or pertaining to
this Agreement or the Merger, including without limitation any act or
omission of the officers and directors of Nucleus in the negotiation
execution and delivery of this Agreement and the consummation of the
Merger. AGV and Nucleus, as the case may be, will pay expenses incurred by
an Indemnified Party in advance of the final disposition of any such action
or proceeding upon receipt of an undertaking by or on behalf of such
Indemnified Party to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified. In the event any such claim,
action , suit, proceeding or investigation is brought against any
Indemnified Party, the Indemnifying Party shall proceed at its own expense
to resist and dispose of such claim in such manner as it deems appropriate;
provided, however, that the Indemnified Party shall have the right to
employ separate legal counsel in any such claim and participate in the
defense thereof, but the fees and expenses of such other counsel shall be
at the expense of the Indemnified Party and shall not be an Indemnified
Liability hereunder unless the Indemnified Party shall conclude based on
advice of counsel that the interests of the Indemnified Party in such
action are materially different from those of the Indemnifying Party or
that the Indemnified Party may have defenses that are different from or in
addition to those available to the Indemnifying Party in which case the
fees and expenses of such counsel shall be an Indemnified Liability.
Neither the Indemnifying Party nor the Indemnified Party shall, except with
the prior written consent of each other Indemnified or Indemnifying Party
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affected, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term and release by the claimant
or plaintiff of all such parties from all further liability in respect of
such claim. Any Indemnified Party wishing to claim indemnification under
this paragraph 5(1), upon learning of any such claim, action, suit,
proceeding or investigation, shall notify the Indemnifying Party (but the
failure so to notify the Indemnifying Party shall not relieve such party
from any liability which it may have under this paragraph 5(1) except to
the extent such failure prejudices such party), and shall deliver to the
Indemnifying Party the undertaking to repay expenses referred to above.
(b) For the entire period from the Effective Time until at least three
years after the Effective Time AGV will cause the Surviving Corporation to
maintain without any reduction in scope or coverage the indemnification
provisions for present and former officers and directors contained in
Nucleus's Certificate of Incorporation and By-laws in effect on the date
hereof.
(c) The provisions of this paragraph 5(1) shall survive the Effective
Time and are intended to be for the benefit of and shall be enforceable by
each Indemnified Party and his or her heirs and representatives.
(m) Compliance with the Securities Act. Nucleus shall use its commercially
reasonable efforts to cause each person who is an affiliate, as that term is
used in paragraphs (c) and (d) of Rule 145 under the Securities Act, of Nucleus
to deliver to AGV on or prior to the Effective Time a written agreement to the
effect that such person will not offer to sell, sell or otherwise dispose of any
shares of AGV Common Stock issued in the Merger, except in each case pursuant to
an effective registration statement or in compliance with Rule 145, as amended
from time to time, or in as transaction which in the opinion of legal counsel
satisfactory to AGV is exempt from the registration requirements of the
Securities Act, and in a manner necessary to assure the accounting treatment of
the Merger as a "pooling of interests." Nucleus shall use its commercially
reasonable efforts to provide AGV with such information as AGV shall reasonably
request for purposes of making its own determination of persons who may be
deemed to be affiliates of Nucleus.
(n) Report on Form 8-K. AGV will use its commercially reasonable efforts to
file a Current Report on Form 8-K containing financial results of the combined
operations of AGV and Nucleus covering a period of at least 30 days following
the Effective Date with the SEC within 45 days after the last day of the first
full month following the Effective Date; provided, however, that AGV may delay
the filing of the Form 8-K for a reasonable period of time if it determines, in
good faith, that the filing would require disclosure of information not
otherwise then required to be disclosed and that such disclosure would adversely
affect any material business situation, transaction or negotiation then
proposed, contemplated or being engaged in by AGV.
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(o) Continuity of Business Enterprise. The Buyer will continue at least one
significant historic business line of the Target, or use at least a significant
portion of the Target's historic business assets in a business, in each case
within the meaning of Reg. ss.1.368-1(d).
6. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of the Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in ss.3 above shall
be true and correct in all material respects at and as of the Closing Date;
(ii) the Target shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would
(A) prevent consummation of any of the transactions contemplated by this
Agreement, (B) cause any of the transactions contemplated by this Agreement
to be rescinded following consummation, (C) affect adversely the right of
the Surviving Corporation to own the former assets, to operate the former
businesses, and to control the former Subsidiaries of the Target, or (D)
affect adversely the right of any of the former Subsidiaries of the Target
to own its assets and to operate its businesses (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect);
(iv) the Target shall have delivered to the Buyer a certificate to the
effect that each of the conditions specified above in ss.6(a)(i)-(iii) is
satisfied in all respects;
(v) this Agreement and the Merger shall have received the Requisite
Buyer Stockholder Approval;
(vi) AGV shall have received the agreement(s) referred to in paragraph
5(m);
(vii) the Buyer shall have received from counsel to the Target an
opinion in form and substance reasonably satisfactory to Buyer, addressed
to the Buyer, and dated as of the Closing Date;
(viii) all actions to be taken by the Target in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Buyer.
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The Buyer may waive any condition specified in this ss.6(a) if it executes
a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Target. The obligation of the Target to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have received the Requisite
Buyer Stockholder Approval;
(ii) the representations and warranties set forth in ss.4 above shall
be true and correct in all material respects at and as of the Closing Date;
(iii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iv) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would
(A) prevent consummation of any of the transactions contemplated by this
Agreement, (B) cause any of the transactions contemplated by this Agreement
to be rescinded following consummation, (C) affect adversely the right of
the Surviving Corporation to own the former assets, to operate the former
businesses, and to control the former Subsidiaries of the Target, or (D)
affect adversely the right of any of the former Subsidiaries of the Target
to own its assets and to operate its businesses (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect);
(v) the Buyer shall have delivered to the Target a certificate to the
effect that each of the conditions specified above in ss.6(b)(i)-(iv) is
satisfied in all respects;
(vi) the Target shall have received from counsel to the Buyer an
opinion in form and substance reasonably satisfactory to Target, addressed
to the Target, and dated as of the Closing Date;
(vii) Nucleus shall have received the resignation, effective as of the
Closing, of Christopher Walker as director of AGV; and
(viii) the By-Laws of AGV shall have been amended to provide for up to
ten directors; and
(ix) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Target.
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The Target may waive any condition specified in this ss.6(b) if it executes
a writing so stating at or prior to the Closing.
7. Termination.
(a) Termination of Agreement. Either of the Parties may terminate this
Agreement with the prior authorization of its board of directors (whether before
or after stockholder approval) as provided below:
(i) the Parties may terminate this Agreement by mutual written consent
at any time prior to the Effective Time;
(ii) the Buyer may terminate this Agreement by giving written notice
to the Target at any time prior to the Effective Time (A) in the event the
Target has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Buyer has notified
the Target of the breach, and the breach has continued without cure for a
period of 30 days after the notice of breach or (B) if the Closing shall
not have occurred on or before December 31, 1998, by reason of the failure
of any condition precedent under ss.6(a) hereof (unless the failure results
primarily from the Buyer breaching any representation, warranty, or
covenant contained in this Agreement);
(iii) the Target may terminate this Agreement by giving written notice
to the Buyer at any time prior to the Effective Time (A) in the event the
Buyer has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Target has
notified the Buyer of the breach, and the breach has continued without cure
for a period of 30 days after the notice of breach or (B) if the Closing
shall not have occurred on or before December 31, 1998, by reason of the
failure of any condition precedent under ss.6(b) hereof (unless the failure
results primarily from the Target breaching any representation, warranty,
or covenant contained in this Agreement);
(iv) the Target may terminate this Agreement by giving written notice
to the Buyer at any time prior to the Effective Time in the event the
Target's board of directors concludes that termination would be in the best
interests of the Target and its stockholders; or
(v) any Party may terminate this Agreement by giving written notice to
the other Party at any time after the Special Buyer Meeting in the event
this Agreement and the Merger fail to receive the Requisite Buyer
Stockholder Approval.
(b) Effect of Termination. If any Party terminates this Agreement pursuant
to ss.7(a) above, all rights and obligations of the Parties hereunder shall
terminate without any liability of any Party to any other Party (except for any
liability of any Party then in breach); provided, however, that the
confidentiality provisions contained in ss.5(g) and 5(h) above shall survive any
such termination.
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8. Miscellaneous.
(a) Survival. None of the representations, warranties, and covenants of the
Parties (other than the provisions in ss.2 above concerning issuance of the
Buyer Shares, the provisions in ss.5(l) above concerning insurance and
indemnification, and the provisions in ss.5(o) above concerning certain
requirements for a tax-free reorganization]) will survive the Effective Time.
(b) Press Releases and Public Announcements. No Party shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party will use its best
efforts to advise the other Party prior to making the disclosure).
(c) No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns; provided, however, that (i) the provisions in
ss.2 above concerning issuance of the Buyer Shares and the provisions in ss.5(o)
above concerning certain requirements for a tax-free reorganization are intended
for the benefit of the Target Stockholders and (ii) the provisions in ss.5(l)
above concerning insurance and indemnification are intended for the benefit of
the individuals specified therein and their respective legal representatives.
(d) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Target: Nucleus Holding Corporation
150 North Michigan Avenue
Suite 3610
Chicago, Illinois 60601
Copy to: Frederick H. Kopko, Jr.
McBreen, McBreen & Kopko
20 North Wacker Drive
Suite 2520
Chicago, Illinois 60606
If to the Buyer: American General Ventures, Inc.
3650 Austin Bluffs Parkway
Suite 138
Colorado Springs, Colorado 80918
Copy to: Jodi Walker
7841 South Garfield
Littleton, Colorado 80122
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Illinois without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Illinois.
(j) Amendments and Waivers. The Parties may mutually amend any provision of
this Agreement at any time prior to the Effective Time with the prior
authorization of their respective boards of directors; provided, however, that
any amendment effected subsequent to stockholder approval will be subject to the
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restrictions contained in the Illinois General Corporation Law and in the Nevada
General Corporation Law. No amendment of any provision of this Agreement shall
be valid unless the same shall be in writing and signed by both of the Parties.
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.
(k) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
(m) Construction. The Parties 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 of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean including without limitation.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
*****
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
AMERICAN GENERAL VENTURES, INC.
By: /s/ Steven H. Walker
Title: President
NUCLEUS HOLDING CORPORATION
By: /s/ John Paulsen
Title: President
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