EXHIBIT
8.1
This
Agreement made as of the 10th day of October 200 1, by and between
Xxxxx Xxxxx Products, Inc., a New York corporation, (“Purchaser),
and Xxxxxxxx Xxxxxxxx, the sole member of Hana Pearl, LLC, (the
“Member”).
WHEREAS,
the Member owns all of the outstanding membership interests of Hana Pearl, LLC,
a Hawaii limited liability company (the “Company”);
WHEREAS,
upon the terms and subject to the conditions contained herein, Purchaser desires
to purchase, and the Member desire to sell, all of the outstanding membership
interests of the Company consisting of one unit (the “Membership
Interest”);
NOW,
THEREFORE, in consideration of the agreements hereinafter contained, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
ARTICLE I
THE
TRANSACTION
1.1
Closing. The closing of the transactions contemplated by this Agreement
(the “Closing”) shall occur on the third business day following the
satisfaction in full or waiver of all of the conditions precedent set forth in
Articles V and VI herein, at the offices of the Purchaser, or on such other date
and at such time and place as may be mutually agreed upon by the parties hereto
(the “Closing Date”).
1.2
Purchase and Sale of Membershil2 Interest and Stock. The Member shall
sell, transfer and deliver to Purchaser and Purchaser shall acquire the
Membership Interest from the Member free and clear of 0 liens, pledges,
encumbrances, charges and claims thereon, and in consideration therefor,
Purchaser shall transfer to the Member all of the right, title and interest to
10,000,000 shares of the common stock of the Purchaser (the “Xxxxx Xxxxx
Shares”).
1.3
A certificate evidencing the Membership Interest will be delivered to Purchaser
duly endorsed in blank. The Member shall cause the Company to make available to
Purchaser for inspection at Closing its membership interest transfer books and
records and its minute book for all meetings of the Members of the Company prior
to the Closing Date.
1.4
A certificate evidencing the Xxxxx Xxxxx Shares will be delivered to the Member.
The Purchaser shall make available to the Member for inspection at Closing its
minute book for all meetings of its shareholders.
ARTICLE II
REPRESENTATIONS
AND WARRANTIES OF THE MEMBER
The
Member represents and warrants to Purchaser as of the date hereof and as of the
Closing Date as set forth below:
2.1
Valid Existence: Qualification. The Company is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Hawaii. The Company has all requisite power to own or lease
and to operate its properties, and has all requisite power to carry on its
business as it is currently being conducted. The Company is duly qualified or
licensed to do business as a foreign entity and is in good standing in every
jurisdiction in which the Company’s ownership of assets or the conduct of
its business requires such qualification.
2.2
Capitalization. The authorized membership interest of the Company
consists of one unit, which is issued and outstanding. Such membership interest
unit is duly authorized, validly issued and outstanding, and fully paid and
nonassessable. There are no subscriptions, options, wan-ants, rights or calls or
other commitments or agreements to which the Company is a party or by which it
is bound, calling for the issuance, transfer, sale or other disposition of any
class of securities of the Company. There are no outstanding securities of the
Company convertible or exchangeable, actually or contingently, into membership
interest units or any other securities of the Company. Upon delivery. of the
Xxxxx Xxxxx Shares, Purchaser will acquire good and valid title to the
Membership Interest.
2.3 Subsidiaries. The Company has no subsidiaries.
2.4
Consents. There are no consents of governmental and other regulatory
agencies, foreign or domestic, and of other parties required to be received by
or on the part of the Company, or the Member to enable her to enter into and
carry out this Agreement in all material respects.
2.5
Authorization and Enforceabilty as to the Member. This Agreement has been
duly authorized, executed and delivered by the Member and constitutes a valid
and legally binding agreement of the Member, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors’ rights and to
general equitable principles. No consent of any spouse, dependent or other
beneficiary of the Member, or of any trustee or guardian acting in the interests
of the Member or her assets is: required for the execution, delivery and
performance of this Agreement in accordance with its terms.
2.6
Financial Statements, etc. The audited balance sheets at December 31,
2000 of the Company and the unaudited balance sheet at June, 30, 2001 of the
Company, copies of which have been delivered to Purchaser (the “Balance
Sheets”), fairly and consistently present the financial position of the
Company as of said dates, and, except as set forth therein, were prepared in
conformity with generally accepted accounting principles consistently applied
throughout the periods covered thereby.
2.7
Liabilities. As at June 30, 2001 the Company has no material debts,
liabilities or obligations, contingent or absolute, other than those debts,
liabilities and obligations reflected or reserved against in the Company’s
Balance Sheet at June 30, 2001 (the “Balance Sheet Date”), except
those arising in the ordinary and usual course of its business.
2.8
Actions Since the Company Balance Sheet Date. Except as otherwise
expressly provided or set forth in, or required by, this Agreement, since the
Company Balance Sheet Date, the Company has not: (i) incurred any material
obligation or liability, absolute or contingent, except those arising in the
ordinary and usual course of its business; (ii)- discharged or satisfied any
lien or encumbrance, except in the ordinary and usual course of business, or
paid or satisfied any liability, absolute or contingent, other than liabilities
as at the Company Balance Sheet Date and current liabilities incurred since the
Company Balance Sheet Date in the ordinary and usual course of business; (iii)
made any wage or salary increases or granted any bonuses other than wage and
salary increases and bonuses granted in accordance with its normal salary
increase and bonus policies; (iv) mortgaged, pledged or subjected to any lien,
pledge, charge or other encumbrance any of its properties or assets, or
permitted any of its properties or assets to be subjected to any lien or other
encumbrance, except in the ordinary and usual course of business; (v) sold,
assigned or transferred any of its properties or assets, except in the ordinary
and usual course of business; (vi) entered into any transaction or course of
conduct not in the ordinary and usual course of business; (vii) waived any
rights of substantial value, or canceled,. modified or waived any indebtedness
for borrowed money held by it, except in the ordinary and usual course of
business; (viii) declared, paid or set aside any dividends or other
distributions or payments on its capital stock, or redeemed or repurchased, or
agreed to redeem or repurchase, any shares of its capital stock; (ix) made any
loans or advances to any person, or assumed, guaranteed, endorsed or otherwise
became responsible for the obligations of any person; or (x) incurred any
indebtedness for borrowed money (except for endorsement, for collection or
deposit of negotiable instruments received in the ordinary and usual course of
business).
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2.9 Adverse Developments. Since the Company Balance Sheet Date, there has not been any
material adverse change in the business, prospects, operations, properties or
condition, financial or otherwise, of the Company.
2.10
Taxes. True and complete copies of the Federal income tax returns on Form
1120 for the Company as filed with the Internal Revenue Service for the fiscal
year ending December 31, 2000 will be delivered to Purchaser at least three
business days prior to the Closing. Said returns were prepared in conformity
with information contained in the books and records of the Company and contain
no untrue statement of a material fact or omit to state any fact required to be
stated therein to make any such returns not materially misleading. All taxes,
including, without limitation, income, property, sales, use, franchise, capital
stock, excise, added value, employees’ income withholding, social security
and unemployment taxes imposed by the United States, any
state or any foreign country, or by any other taxing authority, which have or
may become due or payable by the Company and all interest and penalties thereon,
whether disputed or not, have been paid in full or adequately provided for by
reserves shown in its books of account; all deposits required by law to be made
by the Company or with respect to estimated income, franchise and
employees’ withholding taxes have been duly made; and all tax returns,
including estimated tax returns, required ’ to be filed have been duly
filed. No extension of time for the assessment of deficiencies for any year is
in effect. No deficiency is proposed or to the knowledge of the Member, after
reasonable inquiry, is threatened against the Company. ‘Me federal and
state income tax returns of the Company have not been audited. Hawaii is the
sole state in which income, franchise or sales and use tax returns were filed by
the Company for the fiscal year ending December 31,2000.
2.11 Real Property. The Company does not own any real property.
2.12
Personal Property. The Company owns outright, and has good and marketable
tide to, or valid leasehold interest in, all of its tangible personal property
(including all assets reflected in the Company Balance Sheets, except as the
same may have been disposed of in the ordinary course of business since the
Company Balance Sheet Date), free and clear of all liens, mortgages, pledges,
conditional sales agreements, restrictions on transfer or other encumbrances or
changes.
2.13
Intellectual Property. The Company owns and possesses all right, tide and
interest, or holds a valid license, in and to all rights in patents, patent
applications, trademarks, service marks, trade names, corporate names,
copyrights, mask works, trade secrets, know-how or other intellectual property
rights owned by, licensed to or otherwise controlled by the Company or used in,
developed for use in or necessary to the conduct of the Company’s business
as now conducted or planned to be conducted. The Company has taken all necessary
action to protect all intellectual property rights which have been licensed to
or from third parties. The Company has not received any notice of, nor are there
any facts known to the Member which indicate a likelihood of, any infringement
or misappropriation by, or conflict from, any third. party with respect to any
of the Company’s intellectual property rights; no claim by any third party
contesting the validity of any intellectual property rights of the Company has
been made, is currently outstanding or, to the best knowledge of the Member, is
threatened; and the Company has not received any notice of any infringement,
misappropriation or violation by the Company of any intellectual property rights
of any third parties and the Company has not infringed, misappropriated or
otherwise violated any such intellectual property rights.
2.14
Litigation; Compliance with Law. There are no actions, suits, proceedings
or governmental investigations relating to the Company or its properties, assets
or business pending or, to the knowledge of the Member after reasonable inquiry,
threatened, or any order, injunction, award or decree outstanding, against the
Company or against or relating to its properties, assets or business; and the
Member, after reasonable inquiry, does not know of any basis for any such
actions, suits or proceedings within the past two (2) yew or any such
governmental investigations, orders, injunctions or decrees at any time in the
past. The Company is not in violation of any law, regulation, ordinance, order,
injunction, decree, award, or other requirement of any governmental body, court
or arbitrator relating to its properties, assets or business, the violation of
which would have a material adverse effect on the Company.
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2.15
Permits and Licenses. The Company has all permits, licenses,
orders and approvals of all federal, state, local and foreign governmental or
regulatory bodies required of it to carry on its business as presently
conducted; all such other permits, licenses, orders, franchises and approvals
are in full force and effect, and, after reasonable inquiry, no suspension or
cancellation of any of such other permits, licenses, etc. is threatened; and the
Company is in compliance in all material respects with all requirements,
standards and procedures of the federal, state, local and foreign governmental
bodies which have issued such permits, licenses, orders, franchises and
approvals.
2.16 Interest in Assets. Neither the Member nor any of her affiliates owns any
property or rights, tangible or intangible, used in or related, directly or
indirectly, to the business of the Company
2.17 No Breach. Neither the execution and delivery of this Agreement nor compliance
by the Member with any of the provisions hereof, nor the consummation of the
transactions contemplated hereby, will:
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(a)
violate or conflict with, any provision of the Articles of Organization or Operating
Agreement of the Company, or any other arrangement to which the Company or the Member is
a party; |
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(b)
violate or, alone or with notice or the passage of time, result in the material breach
or termination of, or otherwise give any contracting party the right to terminate, or
declare a default-under, the terms of any agreement or other document or undertaking,
oral or written to which the Company or the Member is a party or by which either of them
or any of their respective properties or assets may be bound (except for such
violations, conflicts, breaches or defaults as to which required waivers or consents by
other parties have been, or will, prior to the Closing, be obtained); |
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(c)
result in the creation of any lien, security interest, charge or encumbrance upon any of
the properties or assets of the Company pursuant to the terms of any such agreement or
instrument; |
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(e)
violate any law or regulation of any jurisdiction relating to the Company, the Member or
their securities, assets or properties. |
2.18 Investment Representations.
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2.19
No Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on directly by Purchaser with
the Member, without the intervention of any broker, finder, investment banker or
other third party. The Member has not engaged, consented to, or authorized any
broker, finder, investment banker or other third party to act on its behalf,
directly or indirectly, as a broker or finder in connection with the
transactions contemplated by this Agreement, and the Member agrees to indemnify
Purchaser against, and to hold Purchaser harmless from, any claim for brokerage
or similar commissions or other compensation which may be made against Purchaser
by any third party in connection with any of the transactions contemplated
hereby which claim is based upon any action by the Member.
2.20
Untrue or Omitted Facts. No representation, warranty or statement by the
Member in this Agreement contains any untrue statement of a material fact, or
omits or will omit to state a fact necessary in order to make such
representations, warranties or statements not materially misleading. Without
limitation of the foregoing, there is no fact known to the Member, after
reasonable inquiry, that has had, or which may be reasonably expected to
have, a materially adverse effect on the Company or any of its assets,
properties, operations or businesses that has not been disclosed in writing to
Purchaser.
ARTICLE
III
REPRESENTATION
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to the Member as of the date hereof and as of the
Closing Date set forth below:
3.1
Organization and Power. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
and has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby.
3.2
Capitalization. The authorized capital stock of the Purchaser consists of
500,000,000 shares of common stock, of which 19,781,635 shares are issued and
outstanding. All of such shares are duly authorized and all such shares of
common stock are validly issued and outstanding, fully paid and nonassessable.
There are no subscriptions, options, warrants, rights or calls or other
commitments or agreements to which the Purchaser is a party or by which it is
bound, calling for the issuance, transfer, sale or other disposition of any
class of securities of the Purchaser. There are no outstanding securities of the
Purchaser convertible or exchangeable, actually or contingently, into shares of
common stock or any other securities of the Purchaser. Upon delivery of the
purchase price, the Member will acquire good and valid title to all the Xxxxx
Xxxxx Shares.
3.3 Subsidiaries. The Purchaser has no subsidiaries.
3.4
Authorization and Enforceability. This Agreement has been duly
authorized, executed and delivered by Purchase and constitutes a valid and
legally binding agreement of Purchaser, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors’ rights and to
general equitable principles.
3.5
Consents. No consents of governmental and other regulatory agencies,
foreign or domestic, and of other third parties are required to be received by
or on the part of Purchaser to enable it to enter into and carry out this
Agreement in all material respects.
3.6
Financial Statements, etc. The audited balance sheets at December 3 1,
2000 and December 31, 1999 of the Purchaser and the unaudited balance sheet at
September 30, 2001 of the Purchaser, copies of which will be
delivered to the Member upon its written request to the Purchaser prior to the
Closing (the “Purchaser Balance Sheets”), fairly and consistently
present the financial position of the Purchaser as of said dates, and, except as
set forth therein, were prepared in conformity with generally accepted
accounting principles consistently applied throughout the periods covered
thereby.
3.7
Liabilities. At June 30, 2001 the Purchaser has no material debts,
liabilities or obligations, contingent or absolute, other than those debts,
liabilities and obligations reflected or reserved against in the Purchaser
Balance Sheet at September 30, 2001 (the “Purchaser Balance Sheet
Date”), except those arising in the ordinary and usual course of its
business.
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3.8
Actions Since the Purchaser Balance Sheet Date. Except as otherwise
expressly provided or set forth in, or required by, this Agreement, since the
Purchaser Balance Sheet Date, the Purchaser has not: (i) incurred any material
obligation or liability, absolute or contingent, except those arising in the
ordinary and usual course of its business; (ii) discharged or satisfied any lien
or encumbrance, except in the ordinary and usual course of business, or paid or
satisfied any liability, absolute or contingent, other than liabilities as at
the Purchaser Balance Sheet Date and current liabilities incurred since the
Purchaser Balance Sheet Date in the ordinary and usual course of business; (iii)
made any wage or salary increases or granted any bonuses other than wage and
salary increases and bonuses granted in accordance with its normal salary
increase and bonus policies; (iv) mortgaged, pledged or subjected to any lien,
pledge, charge or other encumbrance any of its properties or assets, or
permitted any of its properties or assets to be subjected to any lien or other
encumbrance, except in the ordinary and usual course of business; (v) sold,
assigned or transferred any of its properties or assets, except in the ordinary
and usual course of business; (vi) entered into any transaction or course of
conduct not in the ordinary and usual course of business, other than an
agreement relating to the acquisition of all of the outstanding stock of Maui
General Store, Inc. in exchange for 111,152,000 shares of the Purchaser’s
Common Stock; (vii) waived any rights of substantial value, or canceled,
modified or waived any indebtedness for borrowed money held by it, except in the
ordinary and usual course of business; (viii) declared, paid or set aside any
dividends or other distributions or payments on its capital stock, or redeemed
or repurchased, or agreed to redeem or repurchase, any shares of its capital
stock; (ix) made any loans or advances to any person, or assumed, guaranteed,
endorsed or otherwise became responsible for the obligations of any person; or
(x) incurred any indebtedness for borrowed money (except for endorsement, for
collection or deposit of negotiable instruments received in the ordinary and
usual course of business).
3.9 Adverse Developments. Since the Purchaser Balance Sheet Date, there has not been
any material adverse change in the business, prospects, operations, properties or
condition, financial or otherwise, of the Purchaser.
3.10
Taxes. True and complete copies of the Federal income tax returns on Form
1120 for the Purchaser as filed with the Internal Revenue Service for the fiscal
years ending December 31, 2000, 1999 and 1998 will be delivered to the Member at
least three business days prior to the Closing. Said returns were prepared in
conformity with information contained in the books and records of the Purchaser
and contain no untrue statement of a material fact or omit to state any fact
required to be stated therein to make any such returns not materially
misleading. All taxes, including, without limitation, income, property, sales,
use, franchise, capital stock, excise, added value, employees’ income
withholding, social security and unemployment taxes imposed by the United
States, any state or any foreign country, or by any other taxing authority,
which have or may become due or payable by the Purchaser and all interest and
penalties thereon, whether disputed or not, have been paid in full or adequately
provided for by reserves shown in its books of account; all deposits required by
law to be made by the Purchaser or with respect to estimated income, franchise
and employees’ withholding taxes have been duly made; and all tax returns,
including estimated tax returns, required to be filed have been duly filed. No
extension of time for the assessment of deficiencies for any year is in effect.
No deficiency is proposed or to the knowledge of the Purchaser, after reasonable
inquiry, is threatened against the Purchaser. The federal and state income tax
returns of the Purchaser have not been audited. New York is the sole state in
which income, franchise or sales and use tax returns were filed by the Purchaser
for the fiscal year ending December 31, 2000.
3.11 Real Property. The Purchaser does not own any real property.
3.12
Personal Property. The Purchaser owns outright, and has good and
marketable title to, or valid leasehold interest in, all of its tangible
personal property (including all assets reflected in the Purchaser Balance
Sheets, except as the same may have been disposed of in the ordinary course of
business since the Purchaser Balance Sheet Date), free and clear of all liens,
mortgages, pledges, conditional sales agreements, restrictions on transfer or
other encumbrances or changes.
3.13
Intellectual Property. The Purchaser owns and possesses all right, title
and interest, or holds a valid license, in and to all rights in patents, patent
applications, trademarks, service marks, trade names, corporate names,
copyrights, mask works, trade secrets, know-how or other intellectual property
rights owned by, licensed to or otherwise controlled by the Purchaser or used
in, developed for use in or necessary to the conduct of the Purchaser’s
business as now conducted or planned to be conducted. The Purchaser has taken
all necessary action to protect all intellectual property rights which have been
licensed to or from third parties. The Purchaser has not received any notice of,
nor are there any facts known to the Purchaser which indicate a likelihood of,
any infringement or misappropriation by, or conflict from, any third party with
respect to any of the Purchaser’s intellectual property rights; no claim by
any third party contesting the validity of any intellectual property rights of
the Purchaser has been made, is currently outstanding or, to the best knowledge
of the Purchaser, is threatened; and the Purchaser has not received any notice
of any infringement, misappropriation or violation by the Purchaser of any
intellectual property rights of any third parties and the Purchaser has not
infringed, misappropriated or otherwise violated any such intellectual property
rights.
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3.14
Litigation; Compliance with Law. There are no actions, suits, proceedings
or governmental investigations relating to the Purchaser or its properties,
assets or business pending or, to the knowledge of the Purchaser after
reasonable inquiry, threatened, or any order, injunction, award or decree
outstanding, against the Purchaser or against or relating to its properties,
assets or business; and the Purchaser, after reasonable inquiry, does not know
of any basis for any such actions, suits or proceedings within the past two (2)
years or any such governmental investigations, orders, injunctions or decrees at
any time in the past. The Purchaser is not in violation of any law, regulation,
ordinance, order, injunction, decree, award, or other requirement of any
governmental body, court or arbitrator relating to its properties, assets or
business, the violation of which would have a material adverse effect on the
Purchaser.
3.15
Permits and Licenses. The Purchaser has all permits, licenses, orders and
approvals of all federal, state, local and foreign governmental or regulatory
bodies required of it to carry on its business as presently conducted; all such
other permits, licenses, orders, franchises and approvals are in full force and
effect, and, after reasonable inquiry, no suspension or cancellation of any of
such other permits, licenses, etc. is threatened; and the Purchaser is in
compliance in all material respects with all requirements, standards and
procedures of the federal, state, local and foreign governmental bodies which
have issued such permits, licenses, orders, franchises and approvals.
3.16 No Breach. Neither the execution and delivery of this Agreement nor compliance by
Purchaser with any of the provisions hereof nor the consummation of the transactions
contemplated hereby, will:
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(a)
violate or, alone or with notice or the passage of time, result in the material breach
or termination of, or otherwise give any contracting party the right to terminate, or
declare a default under, the terms of any agreement or other document or undertaking,
oral or written to which Purchaser is a party or by which it or its properties or assets
may be bound (except for such violations, conflicts, breaches or defaults as to which
required waivers or consents by other parties have been, or will, prior to the Closing,
be obtained); |
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(b)
result in the creation of any lien, security interest, charge or encumbrance upon any
of the properties or assets of Purchaser pursuant to the terms of any such agreement or
instrument; |
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(d)
violate any law or regulation of any jurisdiction relating to Purchaser, its
securities, assets or properties. |
3.17
No Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on directly by Purchaser with
the Member, without the intervention of any broker, finder, investment banker or
other third party. Purchaser has not engaged, consented to, or authorized any
broker, finder, investment banker or other third party to act on his behalf,
directly or indirectly, as a broker or finder in connection with the merger and
the transactions contemplated by this Agreement, and Purchaser agrees to
indemnify and to hold harmless the Member from and against any claim for
brokerage or similar commission or other compensation which may be made against
the Member by any third party in connection with any of the transactions
contemplated hereby, which claim is based upon any action by Purchaser.
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3.18
Investment Representations.
3.19
Untrue or Omitted Facts. To the knowledge of Purchaser, after reasonable
inquiry, no representation, warranty or statement by Purchaser in this Agreement
contains any untrue statement of a material fact, or omits or will omit to state
a fact necessary in order to make such representations, warranties or statements
not materially misleading. Without limitation of the foregoing, there is no fact
known to Purchaser, after reasonable inquiry, that has had, or which may be
reasonably expected to have, a materially adverse effect on Purchaser or any of
his assets, properties, operations or businesses and that has not been disclosed
in writing to the Member.
ARTICLE IV
PRE-CLOSING
COVENANTS
4.1 The Member’s Covenants. The Member hereby covenants that, from and after the date
hereof and until the Closing or earlier termination of this Agreement (the
"Pre-Closing Period"):
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(a)
Access. The Member shall cause the Company to afford to the officers, attorneys,
accountants and other authorized representatives of Purchaser free and full access,
during regular business hours and upon reasonable notice, to all of the Company’s
books, records, personnel and properties so that Purchaser, at its own expense, may have
full opportunity to make such review, examination and investigation as Purchaser may
desire of the Company’s business and affairs. The Member shall cause the Company to
cause its employees, accountants and attorneys to cooperate fully with said review,
examination and investigation and to make full disclosure to Purchaser of all material
facts affecting the Company’s financial condition and business operations. |
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4.2 The Purchaser’s Covenants. The Purchaser hereby covenants that, from and after the
date hereof and until the Closing or earlier termination of this Agreement (the
"Pre-Closing Period"):
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(a)
Preservation of Business. The Purchaser will use its best efforts to preserve its
business organization intact, to keep available the services of its present officers,
employees and consultants and to preserve its good will. |
ARTICLE V
CONDITIONS
PRECEDENT TO THE OBLIGATION
OF
PURCHASER TO CLOSE
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5.2
Covenants. The Member shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to be
performed or complied with by them prior to or at the Closing.
5.3
No Actions. No action, suit, proceeding or investigation shall have been
instituted, and be continuing before a court or before or by a governmental body
or agency, or shall have been threatened and be unresolved, to restrain or to
prevent or to obtain damages in respect of, the carrying out of the transactions
contemplated hereby, or which might materially affect the right of Purchaser to
own the Membership Interest or to operate or control the assets, properties and
business of the Company after the Closing Date, or which might have a materially
adverse effect thereon.
5.4
Consents; Licenses and Permits. The Company, Purchaser and the Member
shall have each obtained all consents, licenses and permits of third parties
necessary for the performance by each of them of all of their respective
obligations under this Agreement.
5.5
Certificate. Purchaser shall have received a certificate dated the
Closing Date, signed by the Member as to the satisfaction of the conditions
contained in Sections 5.1 and 5.2.
5.6
Approval of Counsel. All actions, proceedings, instruments and documents
required to carry out this Agreement or incidental thereto, and all other
related legal matters, shall have been approved as to form and substance by
counsel to Purchaser, which approval shall not be unreasonably withheld or
delayed.
5.7 Additional Documents. The Member shall have delivered all such other certificates and
documents as Purchaser or its counsel may have reasonably requested.
ARTICLE VI
CONDITIONS
PRECEDENT TO THE OBLIGATION
OF THE MEMBER TO CLOSE
The
obligation of the Member to enter into and complete the Closing is subject to
the fulfillment, prior to or on the Closing Date, of each of the following
conditions, any one or more of which may be waived by the Member (except when
the fulfillment of such condition is a requirement of law).
6.1
Representations and Warranties. All representations and warranties of
Purchaser contained in this Agreement and in any written statement, schedule or
other document delivered by him pursuant hereto or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects as at the Closing Date, as if made at the Closing and as of the Closing
Date.
6.2
Covenants. Purchaser shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to be
performed or complied with by it prior to or at the Closing.
6.3
No Actions. No action, suit, proceeding, or investigation shall have been
instituted, and be continuing, before a court or before or by a governmental
body or agency, or have been threatened, and be unresolved, by any governmental
body or agency to restrain or prevent, or obtain damages in respect of, the
carrying out of the transactions contemplated hereby.
6.4
Certificate. The Member shall have received a certificate dated the
Closing Date, signed by the President or Secretary of the Purchaser as to the
satisfaction of the conditions contained in Sections 6.1 and 6.2.
6.5 Additional Documents. Purchaser shall have delivered all such, certificates and
documents with respect to Purchaser as the Member or her counsel may have reasonably
requested.
6.6
Approval of Counsel. All actions, proceedings, instruments and documents
required to carry out this Agreement or incidental thereto, and all other
related legal matters, shall have been approved as to form and substance by
counsel to the Member, which approval shall not be unreasonably withheld or
delayed.
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ARTICLE VII
CLOSING
7.1
Location. The Closing provided for herein shall take place at Xxxxxx
& Xxxxxxx LLP, 376 17‘E Street, Suite 4700, Xxxxxx, Xxxxxxxx 00000.
7.2 Items to be Delivered by the Member. At the Closing, the Member will deliver or cause to
be delivered to Purchaser:
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(a)
A certificate representing the Membership Interest in accordance with Section 1.3
hereof, accompanied by all instruments and documents as in the opinion of Purchaser’s
counsel shall be necessary to effect the transfer of and to vest title in and to the
Membership Interest in Purchaser, free and clear of all liens, pledges, encumbrances,
charges and claims thereon; |
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(c)
Such other certified resolutions, documents and certificates as are required to be
delivered by the Member pursuant to the provisions of the Agreement. |
7.3 Items to be Delivered by Purchaser. At the Closing, Purchaser will deliver or cause to be
delivered to the Member:
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(a)
Certificates representing the Xxxxx Xxxxx Shares in accordance with Section 1.4 hereof,
accompanied by all instruments and documents as in the opinion of the Member’s
counsel shall be necessary to effect the transfer of and to vest tide in and to the
Xxxxx Xxxxx Shares in the Member, free and clear of all liens, pledges, encumbrances,
charges and claims thereon; |
ARTICLE VIII
SURVIVAL OF
REPRESENTATIONS
8.1
Survival. The parties hereto agree that their respective representations,
warranties, covenants and agreements contained in this Agreement shall survive
the Closing for a term of twenty-four (24) months with the exception of those
regarding taxes set forth in Section 2.10 and 3.10 which shall survive until the
expiration of the respective periods within which such taxes may be assessed.
8.2 Rights Without Prejudice. The rights of the parties under this Article VIII are
without prejudice to any other rights or remedies that it may have by reason of this
Agreement or as otherwise provided by law.
ARTICLE IX
TERMINATION
AND WAIVER
9.1
Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the transactions provided
for herein abandoned at any time prior to the Closing Date:
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(a)
By Purchaser if any of the conditions set forth in Article V hereof shall not have been
fulfilled on or prior to October 31, 2001, or shall become incapable of fulfillment, and
shall not have been waived by Purchaser, |
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(b)
By either party if this Agreement has not closed on or before October 31, 2001. |
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(c)
By either party if any legal action or proceeding shall have been instituted or
threatened seeking to restrain, prohibit, invalidate or otherwise affect the
consummation of the transactions contemplated by this Agreement which makes it
inadvisable, in the judgment of the terminating party to consummate same. |
In
the event that this Agreement is terminated as described above, this Agreement
shall be void and of no force and effect, without any liability or obligation on
the part of any of the parties hereto.
9.2
Waiver. Any condition to the performance of the Member or Purchaser which
legally may be waived on or prior to the Closing Date may be waived at any time
by the party entitled to the benefit thereof by action taken or authorized by an
instrument in writing executed by the relevant party or parties. The failure of
any party at any time or times to require performance of any provision hereof
shall in no manner affect the right of such party as a later time to enforce
the same. No waiver by any party of the breach of any term, covenant,
representation or warranty contained in this Agreement as a condition to such
party’s obligations hereunder shall release or affect any liability
resulting from such breach, and no waiver of any nature, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be or construed as a
further or continuing waiver of any such condition or of any breach of any other
term, covenant, representation or warranty of this Agreement.
ARTICLE X
MISCELLANEOUS
PROVISIONS
10.1 Expenses. Each of the parties hereto shall bear his or its own expenses in connection
herewith.
10.2
Confidential Information. Each party agrees that such party and its
representatives will hold in strict confidence all information and documents
received from the other party and, if the transactions herein contemplated shall
not be consummated, each party will continue to hold such information and
documents in strict confidence and will return to such other party all such
documents (including the exhibits attached to this Agreement) then in such
receiving party’s possession without retaining copies thereof; provided,
however, that each party’s obligations under this Section 10.2 to maintain
such confidentiality shall not apply to any information or documents that are in
the public domain at the time furnished by the other party or that become in the
public domain thereafter through any means other than as a result of any act of
the receiving party or of its agents, officers, directors or stockholders which
constitutes a breach of this Agreement, or that are required by applicable law
to be disclosed. The parties agree that the remedy at law for any breach of this
Section 10.2 will be inadequate and a non-breaching party will be entitled to
injunctive relief to compel the breaching party to perform or refrain from
action required or prohibited hereunder.
10.3
Modification, Termination or Waiver. This Agreement may be amended,
modified, superseded or terminated, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, but only by a
written instrument executed by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision hereof shall
in no manner affect the right of such party at a later time to enforce the same.
10.4
Publicity. The parties agree that no publicity, release or other public
announcement concerning the transactions contemplated by this Agreement shall be
issued by either party without the advance approval of both the form and
substance of the same by the other party and its counsel, which approval, in the
case of any publicity, release or other public announcement required by
applicable law, shall not be unreasonably withheld or delayed.
10.5
Notices. Any notice or other communication required or which may be given
hereunder shall be in writing and either be delivered personally or be mailed,
certified or registered mail, postage prepaid, and shall be deemed given when so
delivered personally, or if mailed, two days after the date of mailing, as
follows:
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If
to Purchaser, to:
Xx. Xxxxxxx X. Xxxxxx
X.X. Xxx 000
Xxxx, Xxxx, Xxxxxx 00000
and if to The Member to:
Xxxxxxxx Xxxxxxxx
0000 Xxxx Xxxxxxx
Xxxx, Xxxx, Xxxxxx 00000 |
The
parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice of any such change in the
manner provided herein for giving notice.
10.6
Binding Effect and Assignment. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto;
provided, however, that no assignment of any rights or delegation of any
obligations provided for herein may be made by any party without the express
written consent of the other parties.
10.7 Entire Agreement. This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof.
10.8
Exhibits. All exhibits annexed hereto and the documents and instruments
referred to herein or required to be delivered simultaneously herewith or at the
Closing are expressly made a part of this Agreement as fully as though
completely set forth herein, and all references to this Agreement herein or in
any of such exhibits, documents, or instruments shall be deemed to refer to and
include all such exhibits, documents and instruments.
10.9
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the State of [Colorado][New York] applicable to
agreements made and to be performed entirely within that State, excluding the
choice of law rules thereof.
10.10
Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but which together shall constitute one
and the same instrument.
10.11 Section Headings. The section headings contained in this Agreement are inserted for
conveniences of reference only and shall not affect the meaning or interpretation of
this Agreement.
WITNESS
the execution of this Agreement as of the date first above written.
XXXXX XXXXX PRODUCTS, INC.
/s/Xxxxxxx Xxxxxx
Xxxxxxx X. Xxxxxx, President |
/s/ Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx |
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