SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: November 24, 2004
HOUSTON OPERATING COMPANY
--------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 000-31553 76-0307819
- - ---------------- ------------- ------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.
incorporation) pre-merger)
610 Newport Center Drive, Suite 1400, Newport Beach, CA 92660
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(Address of principal executive offices) (ZIP Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (949) 760-6832
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions.
[_] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR240.14d-2(b))
[_] Soliciting material pursuant to Rule 14a-12 under Exchange Act
(17 CFR240.14a-12)
[_] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR240.14d-2(b))
[_] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR240.13e-4(c))
Section 1 - Registrant's Business and Operations
Item 1.01 Entry into a Material Definitive Agreement
The Company joined in a Share Purchase Agreement between Speed Action
Limited and Little Hampton Investments LLC for the purposes of providing
warranties and representations. Little Hampton has purchased 7,030,000 shares of
the Company from Speed Action Limited.
Item 1.02 Termination of a Material Definitive Agreement
None
Item 1.03 Bankruptcy or Receivership
None
Section 2 - Financial Information
Item 2.01 Completion of Acquisition or Disposition of Assets
None
Item 2.02 Results of Operations and Financial Condition
None
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an
Off-Balance Sheet Arrangement of a Registrant
None
Item 2.04 Triggering Events That Accelerate or Increase a Direct Financial
Obligation or an Obligation Under an Off-Balance Sheet Arrangement
None
Item 2.05 Costs Associated with Exit or Disposal Activities
None
Item 2.06 Material Impairments
None
Section 3 - Securities Trading Markets
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing
None
Item 3.02 Unregistered Sales of Equity Securities
None
Item 3.03 Material Modification to Rights of Security Holders
None
Section 4 - Matters Related to Accountants and Financial Statements
Item 4.01 Changes in Registrant's Certifying Account
None
Item 4.02 Non-Reliance on Previously Issued Financial Statements or a Related
Audit Report or Completed Interim Review
None.
Section 5 - Corporate Governance and Management
Item 5.01 Changes in Control of Registrant
Little Hampton Investment LLC has purchased 7,030,000 shares of common stock
from Speed Action Limited to accomplish a change of control. Little Hampton
intends to negotiate an acquisition of Net Fabric, Inc. a VOIP technology
company.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers
Chin Sin Low has resigned as President and Director of the Company and Florence
Mei Fong Chang resigned as Secretary of the Company on November 15, 2004. Wes
Whiting has been appointed President and Redgie Green has been appointed
Secretary.
The following individuals have been appointed as officers effective immediately
and as Directors effective ten days after mailing of Notice pursuant to Section
14f of the Securities Exchange Act. of 1934.
REDGIE GREEN, age 51. Mr. Green has been Secretary and Director of Dynadapt
Systems, Inc. since 1998. Mr. Green has been co-owner and operator of Green's
B&R Enterprises, a wholesale donut baker since 1983. He has been an active
investor in small capital and high tech ventures since 1987. Mr. Green was a
director of Colorado Gold & Silver, Inc. in 2000. Mr. Green was elected a
Director of Cheyenne Resources, Inc. in August 2004 and served until November
2004 when he resigned.
WESLEY F. WHITING, Director, age 73. Mr. Whiting was President, director, and
Secretary of Berge Exploration, Inc. (1978-88) and President, Vice President,
and director of NELX, Inc. (1994-1998), and was Vice President and director of
Intermountain Methane Corporation (1988-91), and President of Westwind
Production, Inc. (1997-1998). He was a director of Kimbell deCar Corporation
from 1998, until 2000 and he has been President and a director of Dynadapt
System, Inc. since 1998. He was a Director of Colorado Gold & Silver, Inc. from
1999 to 2000. He was President and director of Business Exchange Holding Corp.
from 2000 to 2002 and Acquisition Lending, Inc. (2000 to 2002). He was director
and Vice President of Utilitec, Inc, 1999 to 2002, and has been Vice President
and director of Agro Science, Inc. since 2001. He was President and director of
Premium Enterprises, Inc. From October 2002 to December 31, 2002. He was
appointed Director and Secretary of BSA SatelLINK, Inc. in 2002. He has been
President and Director of Fayber Group, Inc. since 2003. He has also been
Director of Life USA, Inc. since 2003.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
None
Item 5.04 Temporary Suspension of Trading Under Registrant's Employee Benefit
Plans
None
Item 5.05 Amendments to the Registrant's Code of Ethics, or Waiver of a Provi-
sion of the Code of Ethics.
Section 6 - [Reserved]
Section 7 - Regulation FD
Item 7.01 Regulation FD Disclosure
None
Section 8 - Other Events
Item 8.01 Other Events
None
Section 9 - Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits
10.1 Share Purchase Agreement
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: November 24, 2004 HOUSTON OPERATING COMPANY
By: /s/ Wesley F. Whiting
----------------------------------------
Wesley F. Whiting, Director
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement ("Agreement"), dated as of October __,
2004, among, Speed Action Limited (the "Seller") with offices at East Asia
Chambers, P.O. Box 901, Road Town, Tortola, British Virgin Islands, Houston
Operating Company ("HOC") with offices at 610 Newport Center Dr., Suite 1400,
Newport Beach, CA 92660 and Littlehampton Investments LLC (the "Buyer") with
offices at 1365 York Avenue, #25B, New York, New York 10022.
W I T N E S S E T H:
A. WHEREAS, HOC is a corporation duly organized under the laws of the State of
Delaware
B. WHEREAS, the Seller owns 7,085,848 shares of common stock of HOC in the
aggregate.
C. WHEREAS, Buyer wishes to purchase an aggregate of 7,030,000 shares of
common stock, (collectively, the "Purchase Shares"), and the Seller desires
to sell the Purchase Shares to Buyer free and clear of liens and
encumbrances.
D. HOC is joining in this agreement to provide certain covenants warranties
and representations.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
The Consideration
1.1 Subject to the conditions set forth herein, Seller shall sell to Buyer and
Buyer shall purchase from the Seller, the Purchase Shares. The purchase
price for the Purchase Shares to be paid by Buyer to Seller is $375,000
(the "Consideration"). The Consideration shall be paid at closing by a wire
transfer of immediately available funds to an account specified in writing
by the Seller's legal counsel to Steven L. Siskind, attorney for the Buyer.
1.2 In the event that HOC shall have any Liabilities or Indebtedness as of the
Closing, the Consideration shall be reduced on a dollar for dollar basis by
the amount of such Liability, provided, however, that if the amount of such
Liabilities and Indebtedness equals or exceeds $50,000.00, it shall be
deemed that the Seller is unable to perform under this Agreement and the
Buyer shall be entitled to terminate this Agreement.
ARTICLE II
Closing and Conveyance of Shares
2.1 The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place on or before October 15, 2004 (the "Closing
Date") by exchange of documents among the parties by fax or courier, as
appropriate, following the satisfaction or waiver of all conditions to the
obligations of the parties to consummate the transactions contemplated
hereby (other than conditions with respect to actions the respective
Parties will take at the Closing itself) or such other date as the Buyer
and the Seller may mutually determine; provided, however, that the Closing
Date shall not be later than 5:00 p.m. (Eastern Time) October 31, 2004,
unless extended by written agreement of all parties. Once the Parties each
have made the respective deliveries called for herein, the Closing shall be
deemed to have occurred.
2.2 At the Closing the Seller shall deliver to Steven L. Siskind attorney for
the Buyer the Purchase Shares by delivering Certificate(s) evidencing the
Purchase Shares along with a medallion guaranteed stock power(s) duly
executed in blank against delivery of the Consideration by attorney's
escrow check or wire transfer as directed by Seller
ARTICLE II
Representations, Warranties and Covenants of Seller and HOC as to HOC
Seller and HOC each jointly and severally hereby, represents, warrants
and covenants to Buyer as follows:
3.1 HOC is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has the corporate power and
authority to own or lease its properties and to carry on its business as it
is now being conducted. The Articles of Incorporation as amended to date
and Bylaws of HOC as amended to date, copies of which have been delivered
to the Buyer, are complete and accurate, and the minute books of HOC,
copies of which have also been made available to Buyer, contain 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
HOC.
3.2 (a)The authorized capital stock of HOC consists of 50,000,000 shares of
common stock; 5,000,000 shares of preferred stock and 5,000,000 shares of
preference stock. No preferred or preference stock is issued or
outstanding. There are 7,795,172 shares of Common Stock of HOC issued and
outstanding. Of the issued and outstanding shares of Common Stock
[7,085,848] shares are restricted stock and [709,323] shares may be
freely-transferred without restriction under the Securities Act of 1933 or
may be transferred pursuant to the exemption provided by Rule 144 under the
Securities Act of 1933. All such outstanding shares of capital stock of HOC
were validly issued, fully paid, non-assessable and were issued free of
preemptive rights. HOC has no outstanding options, warrants, or other
rights to purchase, or subscribe to, or other securities
convertible into or exchangeable for any shares of capital stock of HOC, or
contracts or arrangements of any kind relating to the issuance, sale or transfer
of any capital stock or other equity securities of HOC. All of the outstanding
shares of capital stock of HOC have been offered, issued, sold and delivered in
compliance with applicable federal and state securities laws and none of such
securities were, at the time of issuance, subject to preemptive rights. None of
such issued and outstanding shares is the subject of any voting trust agreement
relating to the voting thereof or restricting in any way the sale or transfer
thereof. HOC is not a party to any agreement or understanding granting any
stockholder of HOC the right to cause HOC to register shares of the capital
stock of HOC held by such stockholder under the Securities Act of 1933.
(b) The Seller owns the Purchase Shares that the Seller is
conveying to the Buyer pursuant to this Agreement beneficially and of record,
free and clear of any lien, pledge, security interest or other encumbrance, and,
upon payment for the Purchase Shares as provided in this Agreement, the Buyer
will acquire good and valid beneficial and record title to the Purchase Shares,
free and clear of any lien, pledge, security interest or other encumbrance. None
of the Purchase Shares are the subject of any voting trust agreement or other
agreement relating to the voting thereof or restricting in any way the sale or
transfer thereof except for this Agreement. The Seller is not a party to any
option, warrant, purchase right, or other contract or commitment that could
require the Seller to sell, transfer, or otherwise dispose of any capital stock
of HOC (other than pursuant to this Agreement).
3.3 HOC does not own nor has it owned, in the last three years, any outstanding
shares of capital stock or other equity interests of any partnership, joint
venture, trust, corporation, limited liability company or other entity and
there are no obligations of HOC to repurchase, redeem or otherwise acquire
any capital stock or equity interest of another entity.
3.4 The Seller and HOC each have full power and authority to execute and
deliver this Agreement and to perform their respective obligations
hereunder and this Agreement has been duly authorized, validly executed and
delivered on behalf of the Seller and HOC and is a valid and binding
agreement and obligation of each of HOC and the Seller enforceable against
such parties in accordance with its terms, subject to limitations on
enforcement by general principles of equity and by bankruptcy or other laws
affecting the enforcement of creditors' rights generally, and Seller and
HOC have complete and unrestricted power to enter into and, upon the
appropriate approvals as required by law, to consummate the transactions
contemplated by this Agreement. Neither the Seller nor HOC need give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any governmental authority in order to consummate the
transactions contemplated by this Agreement.
3.5 Neither the making of nor the compliance with the terms and provisions of
this Agreement and consummation of the transactions contemplated herein by
Seller or HOC will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of HOC, or of any material provisions
of any indenture, mortgage, deed of trust or other material agreement or
instrument to which HOC or Seller are a party, or of any material provision
of any law, statute, rule, regulation, or any existing applicable decree,
judgment or order by any court, federal or state regulatory body,
administrative agency, or other governmental body having jurisdiction over
HOC
or Seller, or any of its material properties or assets, or will result in
the creation or imposition of any material lien, charge or encumbrance upon
any material property or assets of HOC pursuant to the terms of any
agreement or instrument to which HOC is a party or by which HOC may be
bound or to which any of HOC property is subject and no event has occurred
with which lapse of time or action by a third party could result in a
material breach or violation of or default by HOC or Seller.
3.6 There is no claim, legal action, arbitration, governmental investigation or
other legal or administrative proceeding, nor any order, decree or judgment
in progress, pending or in effect, or to the best knowledge of the Seller
and HOC threatened against or relating to HOC or affecting any of its
assets, properties, business or capital stock. There is no continuing
order, injunction or decree of any court, arbitrator or governmental
authority to which HOC is a party or by which HOC or its assets,
properties, business or capital stock are bound. HOC has complied in all
material respects with all applicable laws (including rules, regulations,
codes, plans, injunctions, judgments, orders, decrees, rulings, and charges
thereunder) of all governmental authorities, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or
notice has been filed or commenced against HOC alleging any failure so to
comply.
3.7 HOC has accurately prepared and filed all federal, state and other tax
returns required by law, domestic and foreign, to be filed by it, has paid
or made provisions for the payment of all taxes shown to be due and all
additional assessments, and adequate provisions have been and are reflected
in the financial statements of HOC for all current taxes and other charges
to which HOC is subject and which are not currently due and payable. None
of the income tax returns of HOC have been audited by the Internal Revenue
Service, or any other domestic or foreign taxing authority or agency. HOC
has no knowledge of any additional assessments, adjustments or contingent
tax liability (whether federal or state) pending or threatened against HOC
for any period, nor of any basis for any such assessment, adjustment or
contingency. HOC has withheld and paid all taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder or other third party. HOC is
not currently the beneficiary of any extension of time within which to file
any tax return. No claim has ever been made by an authority in a
jurisdiction where HOC does not file tax returns that it is or may be
subject to taxation by that jurisdiction. There are no security interests
on any of the assets of HOC that arose in connection with any failure (or
alleged failure) to pay any tax. True correct and complete copies of all
federal and state income and other material tax returns, examination
reports, and statements of deficiencies assessed against or agreed to by
HOC since its inception have been delivered to the Buyer.
3.8 HOC has delivered to Buyer audited financial statements dated December 31,
2003, 2002 and 2001. All such statements, herein sometimes called "HOC
Financial Statements" are complete and correct in all material respects
and, together with the notes to these financial statements, present fairly
the financial position and results of operations of HOC for the periods
indicated. All financial statements of HOC have been prepared in accordance
with generally accepted accounting principles.
3.9 As of the date hereof, HOC, represents and warrants that all outstanding
indebtedness of HOC is as shown on the financial statements (except for
legal and accounting services related to this transaction). All such
indebtedness (including indebtedness of HOC for legal and accounting
services related to this transaction) shall be paid at or prior to the
Closing by the Seller and will be the sole responsibility of the Seller and
at closing HOC will have no assets and no liabilities.
3.10 Since the dates of the HOC Financial Statements, there have not been any
material adverse changes in the business or condition, financial or
otherwise, of HOC. As of the Closing, HOC does not have 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 (collectively, "Liabilities").
3.11 HOC is not a party to any purchase orders, contracts, commitments,
obligations, plans, agreements, instruments, arrangements, understandings,
bids, undertakings or proposals, written or oral nor is its assets subject
to any of the foregoing.
3.12 The representations and warranties of the HOC shall be true and correct as
of the date hereof and as of the Closing if the Closing occurs on a date
other than the date hereof.
3.13 Prior to the Closing, HOC shall have delivered to Buyer, all of its
corporate books and records for review and from and after the Closing these
books and records shall remain the property of HOC and shall be maintained
by the Buyer.
3.14 HOC has no employees. The officers and directors of HOC named in the SEC
Reports (as defined below) handle the affairs of HOC. None of such officers
and directors is owed any compensation for any services provided to HOC.
HOC has no obligation in respect of employee benefits payable to current or
former employees, officers or directors. HOC has no employee benefit plan
in effect at this time. There is no existing or, to the best of the
knowledge of HOC, threatened, labor strikes or labor disputes, grievances,
controversies or other labor troubles affecting HOC or its business.
3.15 No representation or warranty by the Seller or HOC contained in this
Agreement, and no statement contained in the any document, certificate or
other instrument delivered or to be delivered by or on behalf of the Seller
or HOC pursuant to this Agreement, contains or will contain any untrue
statement of a material fact or omit or will omit to state any material
fact necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not misleading.
3.16 HOC has filed all reports, registration statements, definitive proxy
statements and other documents and all amendments thereto and supplements
thereof required to be filed by it with the U.S. Securities and Exchange
Commission ("SEC") since January 1, 2001 (the "SEC Reports"), all of which
have complied in all material respects with the applicable requirements of
the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the
rules and regulations promulgated thereunder. As of the respective dates of
filing in final or definitive form (or, if amended or superseded by a
subsequent filing, then on the date of such subsequent filing), none of
HOC's SEC Reports contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances in
which they were made, not misleading. HOC is a registered company under the
Securities Exchange Act of 1934, as amended.
3.18 The Buyer has not received any general solicitation or general advertising
regarding the shares of Seller's common stock.
3.19 HOC has conducted no business whatsoever since January 1, 2002, and has
incurred no liabilities except as shown on the financial statements, which
shall be paid at closing by the Seller.
3.20 There have been no material changes, debts, or liabilities incurred by HOC
since the date of HOC's Form 10-KSB for the fiscal year ended December 31,
2003, or since then to date hereof.
3.21 Buyer will receive a good standing certificate from the State of Delaware
and an updated Shareholders List at the time of closing, which shareholders
list shall be true and accurate in all respects upon delivery..
3.22 The Seller 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 the Buyer or HOC
could become liable or obligated.
3.23 The Seller acknowledges and agrees that the Buyer is acquiring a
controlling interest in HOC for the intended purpose of causing HOC to
acquire, in a reverse acquisition transaction, NetFabric Corporation, a
privately held corporation. Netfabric Corporation has developed and sells a
family of internet protocol appliances that dramatically simplify the
incorporation of any telephone system into a company's internet protocol
infrastructure. Seller has conducted due diligence of NetFabric
Corporation's business, assets, operations, financial condition and
prospects and agrees that a reverse acquisition of NetFabric Corporation by
HOC would be in the best interests of HOC and HOC's stockholders. The
Seller further acknowledges and agrees that upon consummation of the
intended reverse acquisition of NetFabric Corporation by HOC the current
stockholders of HOC will experience significant dilution of their ownership
interest in HOC. The Seller hereby waives any claim that the Seller may
have as a result of any business combination involving HOC and NetFabric
Corporation or any other entity that the Buyer may cause HOC to acquire in
the future.
ARTICLE IV
Termination of Representation and
Warranties and Certain Agreements; Indemnification
4.1 The respective representations and warranties of the parties hereto shall
survive this Agreement for two years and the continuing covenants shall
survive hereafter, pursuant to their terms; provided, however that the
representations and warranties contained in Sections 3.2, regarding
capitalization and ownership of the Purchase Shares, 3.7, regarding taxes
and 3.22, regarding brokers fees, shall survive until the expiration of any
applicable statute of limitations relating to claims for breach of such
representations.
4.2 The right to indemnification or payment of Damages (as defined in section
4.4) or other remedy based on any representation, warranty, covenant or
obligation of a party hereunder shall not be waived by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and delivery
of this Agreement, with respect to the accuracy or inaccuracy of or
compliance with, any such representation, warranty, covenant or obligation.
4.3 The waiver of any condition to a party's obligation to consummate the
transactions contemplated hereunder, where such condition is based on the
accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, or payment of Damages, or other remedy based on such
representation, warranty, covenant or obligation.
4.4 Seller, shall indemnify and hold harmless the Buyer and its respective
officers, directors and affiliates (the "Buyer Indemnified Persons") for,
and will pay to the Buyer Indemnified Persons, the amount of, any loss,
liability, claim, damage (including, without limitation, incidental and
consequential damages), cost, expense (including, without limitation,
interest, penalties, costs of investigation and defense and the reasonable
fees and expenses of attorneys and other professional experts) or
diminution of value, whether or not involving a third-party claim
(collectively, "Damages"), directly or indirectly arising from,
attributable to or in connection with:
(a) any representation or warranty made by Seller or HOC in this agreement
or any closing deliveries, that is, or was at the time made, false or
inaccurate, or any breach of, or misrepresentation with respect to,
any such representation or warranty; and
(b) any breach by any of the Seller or HOC of any covenant, agreement or
obligation of HOC or Seller contained in this agreement.
(c) any claims or litigation relating to HOC now pending or threatened or
which may hereafter be brought against Buyer and/or HOC or Seller
based upon events occurring prior to the date hereof and not
attributable to the acts of the Buyer.
(d) Any Liabilities of HOC existing, or arising from any action or
circumstance existing, on or prior to the date hereof, including,
without limitation, any Liabilities arising out of the ownership of
the Purchase Shares or operation of HOC on or prior to the Closing.
(e) any and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs, losses, liabilities and reasonable legal and other
expenses incident to any of the foregoing.
4.5 Seller and HOC shall have no liability for indemnification with respect to
any representation or warranty, unless, on or before the second anniversary
of the date hereof (or in the case of liability arising out of a breach of
the representations set forth in Sections 3.2, 3.7 or 3.22 hereof, on or
before the expiration of the applicable statute of limitations), the Buyer
notifies the Seller of a claim specifying the basis thereof in reasonable
detail to the extent then known by Buyer. A claim with respect to any
covenant, agreement or obligation contained in this agreement, may be made
at any time without any time limitation.
4.6 Promptly after receipt by an indemnified party of written notice (the
"Notice of Claim") of the commencement of any action, suit or proceeding
against it, or written threat thereof, such indemnified party will, if a
claim is to be made against an indemnifying party under either of said
sections, as applicable, give notice to the indemnifying party of the
commencement of such action, suit or proceeding. The indemnified party
shall furnish to the indemnifying party in reasonable detail such
information as the indemnified party may have with respect to such
indemnification claims (including copies of any summons, complaint or other
pleading which may have been served on it and any written claim, demand,
invoice, billing or other document evidencing or assenting the same).
Subject to the limitations set forth in this section, no failure or delay
by the indemnified party in the performance of the foregoing shall reduce
or otherwise affect the obligation of the indemnifying party to indemnify
and hold the indemnified party harmless except to the extent that such
failure or delay shall have materially and adversely affected the
indemnifying party's ability to defend against, settle or satisfy any
action, suit or proceeding the claim for which the indemnified party is
entitled to indemnification hereunder. The foregoing shall not apply to the
extent inconsistent with the provisions of section 4.8 relating to
Proceedings.
4.7 If the claim or demand set forth in the Notice of Claim
given by the indemnified party is a claim or demand asserted by a third
party, the indemnifying party shall have 30 days after the Date of Notice
of Claim to notify the indemnified party in writing of its election to
defend such third party claim or demand on behalf of the indemnified party
(the "Notice Period"); provided, however, that the indemnified party is
authorized to file any motion, answer or other pleading which it deems
necessary or appropriate to protect its interests during the Notice Period.
If the indemnifying party elects to defend such third party claim or
demand, the indemnified party shall make available to the indemnifying
party and its agents and representatives all records and other materials
which are reasonably required in the defense of such third party claim or
demand and shall otherwise cooperate (at the sole cost and expense of the
indemnifying party) with, and assist (at the sole cost and expense of the
indemnifying party) the indemnifying party in the defense of, such third
party claim or demand, and so long as the indemnifying party is diligently
defending such third party claim in good faith, the indemnified party shall
not pay, settle or compromise such
third party claim or demand. If the indemnifying party elects to defend
such third party claim or demand, the indemnified party shall have the
right to control the defense of such third party claim or demand, at the
indemnified party's own expense. If the indemnifying party does not elect
to defend such third party claim or demand or does not defend such third
party claim or demand in good faith, the indemnified party shall have the
right, in addition to any other right or remedy it may have hereunder at
the indemnifying party's expense, to defend such third party claim or
demand.
4.8 The term "Date of Notice of Claim" shall mean the date the Notice of Claim
is effective pursuant to section 4.6 of this Agreement.
4.9 A claim for indemnification for any matter not involving a third-party
claim may be asserted by notice to the party from whom indemnification is
sought.
4.10 Any legal action or proceeding with respect to this Agreement or any
matters arising out of or in connection with this Agreement or the
transactions contemplated hereby or the documents executed and delivered in
connection herewith, and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York or of
the United States of America for the Southern District of the State of New
York, and, by execution and delivery of this Agreement, the parties each
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts and appellate
courts thereof. The parties irrevocably consent to service of process out
of any of the aforementioned courts in any such action or proceeding in
accordance with the notice provisions set forth in Section 9.5. The parties
each hereby irrevocably waive any objection that it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Agreement or the transactions
contemplated hereby or the documents execute and delivered in connection
herewith brought in the courts referred to above and hereby further
irrevocably waive and agree, to the extent permitted by applicable law, not
to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
Nothing herein shall affect the right of any party hereto to serve process
in any other manner permitted by law.
4.11 Other Indemnification Provisions. The Seller hereby indemnifies HOC against
any and all claims that may be filed by a current or former officer,
director or employee of the Seller or HOC by reason of the fact that such
person was a director, officer, employee, or agent of HOC or was serving
HOC at the request of the Seller or HOC as a partner, trustee, director,
officer, employee, or agent of another entity, whether such claim is for
accrued salary, compensation, indemnification, judgments, damages,
penalties, fines, costs, amounts paid in settlement, losses, expenses, or
otherwise and whether such claim is pursuant to any statute, charter
document, bylaw, agreement, or otherwise) with respect to any action, suit,
proceeding, complaint, claim, or demand brought against HOC (whether such
action, suit, proceeding, complaint, claim, or demand is pursuant to an
agreement, applicable law, or otherwise).
ARTICLE V
Procedure for Closing
5.1 At the Closing Date, the purchase and sale shall be consummated after
satisfaction of all conditions precedent set forth in Article VI, by
Seller' common stock certificates for the Purchase Shares being delivered,
duly executed, against the delivery of the Consideration for share purchase
from the Buyer, together with delivery of all other items, agreements,
stock powers, warranties, and representations set forth in this Agreement.
5.2 The closing deliverables shall be sent to Steven L. Siskind Buyer's counsel
who shall hold such deliverables in escrow pending the Closing. Once Buyer
is satisfied that it has received all Closing deliverables, Buyer shall pay
the Consideration to the Seller in accordance with Section 1.1 hereof and
the Closing shall be deemed to have occurred
ARTICLE VI
Conditions Precedent to the
Consummation of the Purchase
The following are conditions precedent to the consummation of the
Agreement on or before the Closing Date:
6.1 Seller and HOC shall have performed and complied with all of their
respective obligations hereunder which are to be complied with or performed
on or before the Closing Date.
6.2 No action, suit or proceeding shall have been instituted or shall have been
threatened before any court or other governmental body or by any public
authority to restrain, enjoin or prohibit the transactions contemplated
herein, or which might subject any of the parties hereto or their directors
or officers to any material liability, fine, forfeiture or penalty on the
grounds that the transactions contemplated hereby, the parties hereto or
their directors or officers, have violated any applicable law or regulation
or have otherwise acted improperly in connection with the transactions
contemplated hereby, and the parties hereto have been advised by counsel
that, in the opinion of such counsel, such action, suit or proceeding
raises substantial questions of law or fact which could reasonably be
decided adversely to any party hereto or its directors or officers.
6.3 The representations and warranties made by Seller and HOC in this Agreement
shall be true as though such representations and warranties had been made
or given on and as of the Closing Date, except to the extent that such
representations and warranties may be untrue on and as of the Closing Date
because of changes caused by transactions suggested or approved in writing
by the Buyer.
6.4 The Seller shall have delivered to the Buyer a certificate to the effect
that (A) each of the conditions specified in Section 6.1, 6.2 and 6.3 is
satisfied in all respects, and (B) as of the Closing, HOC has no
Liabilities or indebtedness whatsoever.
6.5 The Buyer shall have received the resignations, effective as of the tenth
(10th) day following the filing by HOC of a Schedule 14f-1 information
statement with the Securities and Exchange Commission, of each director of
HOC and the Buyer shall have received the resignations, effective as of the
Closing, of each officer of HOC. The designees specified by the Buyer shall
have been appointed as officers of HOC.
6.6 There shall not have been any occurrence, event, incident, action, failure
to act, or transaction since December 31, 2003 which has had or is
reasonably likely to cause a material adverse effect on the business,
assets, properties, financial condition, results of operations or prospects
of HOC.
6.7 The Buyer shall have completed its business, accounting and legal due
diligence review of HOC, and the results thereof shall not have revealed
any breach of this Agreement by Seller or HOC, nor that any representation
or warranty of Seller or HOC in this Agreement is false.
6.8 The Buyer shall have received such pay-off letters and releases relating to
indebtedness and Liabilities as it shall have requested and such pay-off
letters shall be in form and substance satisfactory to it.
6.9 The Seller shall have conducted UCC, judgment lien and tax lien searches
with respect to HOC, and delivered the results of such searches to the
Buyer, which results indicate no liens on the assets of HOC.
6.10 HOC shall have delivered its Certificate of Incorporation and bylaws, both
as amended to the Closing Date, certified by the Secretary of HOC and HOC
shall deliver to the Buyer HOC's original minute book and corporate seal
and all other original corporate documents.
6.11 HOC shall deliver to the Buyer a Certificate of Good Standing in respect of
HOC issued by the Delaware Secretary of State dated no earlier than 5 days
prior to the Closing.
6.12 HOC shall have filed all of the reports required to be filed under the
Exchange Act during the 12 months preceding the Closing (or such shorter
period as HOC was required to file such reports) and HOC shall have
otherwise met all of the requirements of Rule 144(c) of the Securities Act;
6.13 HOC shall have maintained at and immediately after the Closing its status
as a company whose Common Stock is quoted on the OTC Bulletin Board
(Trading Symbol HOOC) that is maintained by the National Association of
Securities Dealers, Inc.
6.14 All actions to be taken by the Seller 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 satisfactory in form and substance to the
Buyer.
ARTICLE VII
Termination and Abandonment
7.1 Anything contained in this Agreement to the contrary notwithstanding, the
Agreement may be terminated and abandoned at any time prior to or on the
Closing Date:
(a) By mutual consent of parties;
(b) By Seller or Buyer, if any condition set forth in Article VI relating
to the other party has not been met or has not been waived;
(c) By Seller or Buyer, if any suit, action, or other proceeding shall be
pending or threatened by the federal or a state government before any court
or governmental agency, in which it is sought to restrain, prohibit, or
otherwise affect the consummation of the transactions contemplated hereby;
(d) By Seller or Buyer, if there is discovered any material error,
misstatement or omission in the representations and warranties of another
party; or
(e) By either party, if the Closing does not occur, through no failure to
act on the part of the other party, on October 31, 2004, or by Seller if
Buyer fails to deliver the consideration required herein.
7.2 Any of the terms or conditions of this Agreement may be waived at any time
by the party which is entitled to the benefit thereof, by action taken by
its Board of Directors or Managing Member provided; however, that such
action shall be taken only if, in the judgment of the party taking the
action, such waiver will not have a materially adverse effect on the
benefits intended under this Agreement to the party waiving such term or
condition.
ARTICLE VIII
Miscellaneous
8.1 This Agreement embodies the entire agreement between the parties, and there
have been and are no agreements, representations or warranties among the
parties other than those set forth herein or those provided for herein.
8.2 To facilitate the execution of this Agreement, any number of counterparts
hereof may be executed, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute
but one instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding for all purposes.
8.3 In case at any time after the Closing any further action is necessary or
desirable to carry out the purposes of this Agreement, each of the parties
will take such further action (including the execution and delivery of such
further instruments and documents) as any other party may reasonably
request, all at the sole cost and expense of the requesting party (unless
the requesting party is entitled to indemnification therefor). The Seller
acknowledges and agrees that from and after the Closing the Buyer will be
entitled to possession of all documents, books, records (including tax
records), agreements, and financial data of any sort relating to HOC.
8.4 This Agreement may not be amended except by written consent of both
parties.
8.5 Any notices, requests, or other communications required or permitted
hereunder shall be delivered personally or sent by overnight courier
service, prepaid, addressed as follows:
To Seller: Speed Action Limited
East Asia Chambers, P.O. Box 901, Road Town, Tortola,
British Virgin Islands
To Buyer: Littlehampton Investments LLC
1365 York Avenue
Apt. 25 B
New York, New York 10021
With copy to Steven L. Siskind, Esq.
645 Fifth Avenue
Suite 403
New York, New Yok 10022
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
8.6 No press release or public statement will be issued relating to the
transactions contemplated by this Agreement without prior approval of the
Buyer and Seller; provided, however, that HOC and Buyer shall be free to
issue any press releases relating to the transactions contemplated hereby
following the Closing. However, HOC may issue at any time any press release
or other public statement it believes on the advice of its counsel it is
obligated to issue to avoid liability under the law relating to
disclosures, but the party issuing such press release or public statement
shall make a reasonable effort to give the other party prior notice of and
opportunity to participate in such release or statement.
8.7 This Agreement shall be governed by and construed in accordance with and
enforced under the laws of the state of New York applicable to all
agreements made hereunder. Venue and jurisdiction for any legal actions
hereunder shall be Southern District Court in and for New York.
8.10 Seller agrees to appoint the buyer's designee as President, and immediately
resign as the President of HOC, upon closing. Seller agrees to execute
minutes appointing buyer's designee(s) as directors of HOC concurrent with
the closing hereunder. Buyer shall provide the names of the appointees as
soon as the buyer wishes to have the persons appointed to the offices.
8.11 In the event and for so long as any party actively is contesting or
defending against any action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand in connection with (i) any transaction
contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence,
event, incident, action, failure to act, or transaction on or prior to the
Closing Date involving HOC, the other party will cooperate with him or it
and his or its counsel in the contest or defense, make available their
personnel, and provide such testimony and access to their books and records
as shall be necessary in connection with the contest or defense, all at the
sole cost and expense of the contesting or defending party (unless the
contesting or defending party is entitled to indemnification therefor).
8.12 The Seller will not take any action that is designed or intended to have
the effect of discouraging any lessor, licensor, customer, supplier, or
other business associate of HOC from maintaining the same business
relationships with HOC after the Closing as it maintained with HOC prior to
the Closing.
8.13 The Seller will cause HOC to give any notices to third parties, and will
cause HOC to use its best efforts to obtain any third party consents, that
the Buyer may reasonably request. Each of the parties will (and the Seller
will cause HOC to) give any notices to, make any filings with, and use its
best efforts to obtain any authorizations, consents, and approvals of
governmental authorities necessary in order to consummate the transactions
contemplated hereby. The parties acknowledge that SEC Rule 14f-1 under the
Securities Exchange Act requires that an information statement containing
certain specified disclosures be filed with the SEC and mailed to HOC's
shareholders at least 10 days before any person designated by Buyer can
become a director of HOC. Buyer and Seller agree to cooperate fully with
HOC in the preparation and filing of such information statement and to
provide all information therefor respectively needed from them in a timely
manner, so as not to cause undue delay in the filing of the information
statement or any amendment thereto. Otherwise, neither HOC nor Seller is
aware of any third party consent nor other filing or notice to third
parties that is necessary in respect of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Seller: Houston Operating Company a Delaware
Corporation
Speed Action Limited
By: ________________________
Name:
Title:
By:_______________________
Name: By: ________________________
Name:
Title:
Buyer:
Littlehampton Investments LLC
By:_________________________
Name: Michael Millon
Title: Managing Member