STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE by and among Color Accents Holdings, Inc. a Nevada Corporation and Color Accents, Inc. a Nevada Corporation effective as of June 9, 2008
Exhibit
10.1
STOCK
PURCHASE AGREEMENT AND SHARE EXCHANGE
by and
among
a Nevada
Corporation
and
Color
Accents, Inc.
a Nevada
Corporation
effective
as of June 9, 2008
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STOCK PURCHASE AGREEMENT AND SHARE
EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND
SHARE EXCHANGE, made and entered into this 9th day of June, 2008, by
and among Color Accents Holdings, Inc., a Nevada corporation with its principal
place of business located at 000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000
("CAH"); Color Accents, Inc. a Nevada Corporation with its principal place of
business at 000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000
("CA").
Premises
A. This
Agreement provides for the acquisition of CA whereby CA shall become a wholly
owned subsidiary of CAH and in connection therewith
B. The
boards of directors of CA and CAH have determined, subject to the terms and
conditions set forth in this Agreement, that the transaction contemplated hereby
is desirable and in the best interests of their stockholders,
respectively. This Agreement is being entered into for the purpose of
setting forth the terms and conditions of the proposed acquisition.
Agreement
NOW, THEREFORE, on the stated premises
and for and in consideration of the mutual covenants and agreements hereinafter
set forth and the mutual benefits to the parties to be derived here from, it is
hereby agreed as follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
Color
Accents, Inc.
As an inducement to and to obtain the
reliance of CAH, CA represents and warrants as follows:
Section 1.1 Organization. CA
is a corporation duly organized, validly existing, and in good standing under
the laws of Nevada and has the corporate power and is duly authorized,
qualified, franchised and licensed under all applicable laws, regulations,
ordinances and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being
conducted, including qualification to do business as a foreign corporation in
the jurisdiction in which the character and location of the assets owned by it
or the nature of the business transacted by it requires
qualification. Included in the Schedules attached hereto (hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not violate any provision of Holding's articles of incorporation or
bylaws. CA has full power, authority and legal right and has taken
all action required by law, its articles of incorporation, its bylaws or
otherwise to authorize the execution and delivery of this
Agreement.
Section 1.2 Capitalization. The
authorized capitalization of CA consists of 100,000,000 Common Shares, $0.0001
par value per share and 10,000,000 Preferred Shares, par value
$0.0001. As of the date hereof, CA has 6,527,500 shares of common
stock outstanding.
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All issued and outstanding shares are
legally issued, fully paid and nonassessable and are not issued in violation of
the preemptive or other rights of any person. CA has no securities,
warrants or options authorized or issued.
Section 1.3 Subsidiaries. CA
has no subsidiaries.
Section 1.4 Tax Matters: Books
and Records.
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(a) The
books and records, financial and others, of CA are in all material
respects complete and correct and have been maintained in accordance with
good business accounting practices;
and
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(b) CA
has no liabilities with respect to the payment of any country, federal,
state, county, or local taxes (including any deficiencies, interest or
penalties).
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(c) CA
shall remain responsible for all debts incurred by CA prior to the date of
closing.
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Section 1.5 Litigation and
Proceedings. There are no actions, suits, proceedings or
investigations pending or threatened by or against or affecting CA or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign or before any arbitrator of any kind
that would have a material adverse affect on the business, operations, financial
condition or income of CA. CA is not in default with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
Section 1.6 Material Contract
Defaults. CA is not in default in any material respect under
the terms of any outstanding contract, agreement, lease or other commitment
which is material to the business, operations, properties, assets or condition
of CA, and there is no event of default in any material respect under any such
contract, agreement, lease or other commitment in respect of which CA has not
taken adequate steps to prevent such a default from occurring.
Section 1.7 Information. The
information concerning CA as set forth in this Agreement and in the attached
Schedules is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
required to make the statements made in light of the circumstances under which
they were made, not misleading.
Section 1.8 Title and Related
Matters. CA has good and marketable title to and is the sole
and exclusive owner of all of its properties, inventory, interest in properties
and assets, real and personal (collectively, the “Assets”) free and clear of all
liens, pledges, charges or encumbrances. CA owns free and clear of
any liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized in
connection with CA business. No third party has any right to,
and CA has not received any notice of infringement of or conflict with asserted
rights of other with respect to any product, technology, data, trade secrets,
know-how, proprietary techniques, trademarks, service marks, trade names or
copyrights which, singly on in the aggregate, if the subject of an unfavorable
decision ruling or finding, would have a materially adverse affect on the
business, operations, financial conditions or income of CA or any material
portion of its properties, assets or rights.
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Section 1.9 Contracts
On the closing date:
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(a) There
are no material contracts, agreements franchises, license agreements, or
other commitments to which CA is a party or by which it or any of its
properties are bound:
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(b) CA
is not a party to any contract, agreement, commitment or instrument or
subject to any charter or other corporate restriction or any judgment,
order, writ, injunction, decree or award materially and adversely affects,
or in the future may (as far as CA can now foresee) materially and
adversely affect, the business, operations, properties, assets or
conditions of CA; and
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(c) CA
is not a party to any material oral or written: (I) contract for the
employment of any officer or employee; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension benefit or
retirement plan, agreement or arrangement covered by Title IV of the
Employee Retirement Income Security Act, as amended;
(iii) agreement, contract or indenture relating to the
borrowing of money; (iv) guaranty of any obligation for the borrowing of
money or otherwise, excluding endorsements made for collection and other
guaranties, of obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more than one year
or providing for payments in excess of $10,000 in the aggregate; (vi)
collective bargaining agreement; (vii) contract, agreement or other
commitment involving payments by it for more than $10,000 in the
aggregate.
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Section 1.10 Compliance With Laws
and Regulations. To the best of CA’s knowledge and
belief, CA has complied with all applicable statutes and regulations of any
federal, state or other governmental entity or agency thereof, except to the
extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of CA or would not result
in CA incurring material liability.
Section 1.11 Insurance. All
of the insurable properties of CA are insured for CA‘s benefit under valid and
enforceable policy or policies containing substantially equivalent coverage and
will be outstanding and in full force at the Closing Date.
Section 1.12 Approval of
Agreement. The directors of CA have authorized the
execution and delivery of the Agreement by and have approved the transactions
contemplated hereby.
Section 1.13 Material Transactions
or Affiliations. There are no material contracts
or agreements of arrangement between CA and any person, who was at the time of
such contract, agreement or arrangement an officer, director or person owning of
record, or known to beneficially own ten percent (10%) or more of the issued and
outstanding Common Shares of CA and which is to be performed in whole or in part
after the date hereof. CA has no commitment, whether written or oral,
to lend any funds to, borrow any money from or enter into material transactions
with any such affiliated person.
Section 1.14 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust or other material
contract, agreement or instrument to which CA is a party or to which any of its
properties or operations are subject.
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Section 1.15 Governmental
Authorizations. CA has all licenses, franchises, permits
or other governmental authorizations legally required to enable it to conduct
its business in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, or registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery by
CA of this Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
As an inducement to, and to obtain the
reliance of CA, CAH represents and warrants as follows:
Section 2.1 Organization. CAH
is a corporation duly organized, validly existing and in good standing under the
laws of Nevada and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign entity in the country or
states in which the character and location of the assets owned by it or the
nature of the business transacted by it requires
qualification. Included in the Attached Schedules (as hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of CAH's certificate of incorporation or
bylaws. CAH has full power, authority and legal right and has taken
all action required by law, its articles of incorporation, bylaws or otherwise
to authorize the execution and delivery of this Agreement.
Section 2.2 Capitalization. The authorized
capitalization of CAH consists of 100,000,000 Common Shares, $0.0001 par value
per share and 10,000,000 Preferred Shares, par value $0.0001. As of the date of
the merger agreement, there were no common shares were outstanding.
All issued and outstanding common
shares have been legally issued, fully paid, are nonassessable and not issued in
violation of the preemptive rights of any other person. CAH has no
other securities, warrants or options authorized or issued.
Section 2.3 Subsidiaries. CAH has no
subsidiaries.
Section 2.4 Tax Matters; Books
& Records
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(a) The
books and records, financial and others, of CAH are in all material
respects complete and correct and have been maintained in accordance with
good business accounting practices;
and
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(b) CAH
has no liabilities with respect to the payment of any country, federal,
state, county, local or other taxes (including any deficiencies, interest
or penalties).
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(c) CAH
shall remain responsible for all debts incurred prior to the
closing.
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Section 2.5 Information. The
information concerning CAH as set forth in this Agreement and in the attached
Schedules is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading.
Section 2.6 Title and Related
Matters. CAH has good and marketable title to and is the
sole and exclusive owner of all of its properties, inventory, interests in
properties and assets, real and personal (collectively, the "Assets") free and
clear of all liens, pledges, charges or encumbrances. Except as set
forth in the Schedules attached hereto, CAH owns free and clear of any liens,
claims, encumbrances, royalty interests or other restrictions or limitations of
any nature whatsoever and all procedures, techniques, marketing plans, business
plans, methods of management or other information utilized in connection with
CAH's business. Except as set forth in the attached Schedules, no
third party has any right to, and CAH has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, proprietary techniques,
trademarks, service marks, trade names or copyrights which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a materially adverse affect on the business, operations, financial
conditions or income of CAH or any material portion of its properties, assets or
rights.
Section 2.7 Litigation and
Proceedings. There are no actions, suits or proceedings pending or
threatened by or against or affecting CAH, at law or in equity, before any court
or other governmental agency or instrumentality, domestic or foreign or before
any arbitrator of any kind that would have a material adverse effect on the
business, operations, financial condition, income or business prospects of
CAH. CAH does not have any knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator or governmental agency or
instrumentality.
Section 2.8 Contracts. On the Closing
Date:
(a) There
are no material contracts, agreements, franchises, license agreements, or other
commitments to which CAH is a party or by which it or any of its properties are
bound;
(b) CAH
is not a party to any contract, agreement, commitment or instrument or subject
to any charter or other corporate restriction or any judgment, order, writ,
injunction, decree or award which materially and adversely affects, or in the
future may (as far as CAH can now foresee) materially and adversely affect, the
business, operations, properties, assets or conditions of CAH; and
(c)CAH is
not a party to any material oral or written: (i) contract for the
employment of any officer or employee; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension, benefit or
retirement plan, agreement or arrangement covered by Title IV of the Employee
Retirement Income Security Act, as amended; (iii) agreement, contract or
indenture relating to the borrowing of money; (iv) guaranty of any
obligation for the borrowing of money or otherwise, excluding endorsements made
for collection and other guaranties of obligations, which, in the aggregate
exceeds $1,000; (v) consulting or other contract with an
unexpired term of more than one year or providing for payments in excess of
$10,000 in the aggregate; (vi) collective bargaining
agreement; (vii) contract, agreement, or other commitment
involving payments by it for more than $10,000 in the aggregate.
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Section 2.9 No Conflict With Other
Instruments. The execution of this Agreement and the consummation of
the transactions contemplated by this Agreement will not result in the breach of
any term or provision of, or constitute an event of default under, any material
indenture, mortgage, deed of trust or other material contract, agreement or
instrument to which CAH is a party or to which any of its properties or
operations are subject.
Section 2.10 Material Contract
Defaults. To the best of CAH's knowledge and belief, it is not in
default in any material respect under the terms of any outstanding contract,
agreement, lease or other commitment which is material to the business,
operations, properties, assets or condition of CAH, and there is no event of
default in any material respect under any such contract, agreement, lease or
other commitment in respect of which CAH has not taken adequate steps to prevent
such a default from occurring.
Section 2.11 Governmental
Authorizations. To the best of CAH’s knowledge, CAH has
all licenses, franchises, permits and other governmental authorizations that are
legally required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with
federal and state securities or corporation laws, no authorization, approval,
consent or order of, or registration, declaration or filing with, any court or
other governmental body is required in connection with the execution and
delivery by CAH of the transactions contemplated hereby.
Section 2.12 Compliance With Laws and
Regulations. To the best of CAH's knowledge and belief, CAH
has complied with all applicable statutes and regulations of any federal, state
or other governmental entity or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets or condition of CAH or would not result in CAH's
incurring any material liability.
Section 2.13 Insurance. All of
the insurable properties of CAH are insured for CAH‘s benefit under valid and
enforceable policy or policies containing substantially equivalent coverage and
will be outstanding and in full force at the Closing Date.
Section 2.14 Approval of
Agreement. The directors of CAH have authorized the execution
and delivery of the Agreement and have approved the transactions contemplated
hereby.
Section 2.15 Material Transactions or
Affiliations. As of the Closing Date, there will exist
no material contract, agreement or arrangement between CAH and any person who
was at the time of such contract, agreement or arrangement an officer, director
or person owning of record, or known by CAH to own beneficially, ten percent
(10%) or more of the issued and outstanding Common Shares of CAH and which is to
be performed in whole or in part after the date hereof except with regard to an
agreement with the CAH shareholders providing for the distribution of cash to
provide for payment of federal and state taxes on Subchapter S
income. CAH has no commitment, whether written or oral, to lend any
funds to, borrow any money from or enter into any other material transactions
with, any such affiliated person.
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ARTICLE
III
EXCHANGE
PROCEDURE AND OTHER CONSIDERATION
Section 3.1 Share Exchange/Delivery of CAH
Securities. On the Closing Date, the holders of all of
the CA Common Shares shall deliver to CAH (i) certificates or other documents
evidencing all of the issued and outstanding CA Common Shares, duly endorsed in
blank or with executed power attached thereto in transferable
form. On the Closing Date, all previously issued and outstanding
Common Shares of CA shall be transferred to CAH, so that CA shall become a
wholly owned subsidiary of CAH.
Section 3.2 Issuance of CAH
Common Shares. In exchange for CAH acquiring all of the CA
Common Shares tendered pursuant to Section 3.1, CAH shall issue to the CA
shareholders a total of 6,527,500 shares of CAH common stock according to
Schedule A. Such shares are restricted in accordance with Rule 144 of
the 1933 Securities Act.
Section 3.3 Events Prior to
Closing. Upon execution hereof or as soon thereafter as
practical, management of CA and CAH shall execute, acknowledge and deliver (or
shall cause to be executed, acknowledged and delivered) any and all
certificates, opinions, financial statements, schedules, agreements, resolutions
rulings or other instruments required by this Agreement to be so delivered,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence the
transactions contemplated hereby, subject only to the conditions to Closing
referenced herein below.
Section 3.4 Closing. The closing
("Closing") of the transactions contemplated by this Agreement shall be June 9,
2008.
Section 3.5 Termination.
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(a) This
Agreement may be terminated by the board of directors or majority interest
of Shareholders of either CA or CAH, respectively, at any time prior to
the Closing Date if:
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(i) there
shall be any action or proceeding before any court or any governmental
body which shall seek to restrain, prohibit or invalidate the transactions
contemplated by this Agreement and which, in the judgment of such board of
directors, made in good faith and based on the advice of its legal
counsel, makes it inadvisable to proceed with the exchange contemplated by
this Agreement; or
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(ii) any
of the transactions contemplated hereby are disapproved by any regulatory
authority whose approval is required to consummate such
transactions.
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In the event of termination pursuant to
this paragraph (a) of this Section 3.5, no obligation, right, or liability shall
arise hereunder and each party shall bear all of the expenses incurred by it in
connection with the negotiation, drafting and execution of this Agreement and
the transactions herein contemplated.
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(b) This
Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of CA if CAH shall fail to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of CAH contained
herein shall be inaccurate in any material respect, which noncompliance or
inaccuracy is not cured after 20 days written notice thereof is given to
CAH. If this Agreement is terminated pursuant to this paragraph
(b) of this Section 3.5, this Agreement shall be of no further force or
effect and no obligation, right or liability shall arise
hereunder.
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(c) This
Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of CAH if CA shall fail to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of CA contained
herein shall be inaccurate in any material respect, which noncompliance or
inaccuracy is not cured after 20 days written notice thereof is given to
CA. If this Agreement is terminated pursuant to this paragraph
(d) of this Section 3.5, this Agreement shall be of no further force or
effect and no obligation, right or liability shall arise
hereunder.
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In the event of termination pursuant to
paragraph (b) and (c) of this Section 3.5, the breaching party shall bear all of
the expenses incurred by the other party in connection with the negotiation,
drafting and execution of this Agreement and the transactions herein
contemplated.
Section 3.6 Directors of CA After
Acquisition. After the Closing Date, Xxxxx Xxxx shall remain
the only members of the Board of Directors of CA. Each director shall
hold office until his successor shall have been duly elected and shall have
qualified or until his earlier death, resignation or removal.
Section 3.7 Officers of CA.
Upon the closing, the following persons shall remain the
officers of CA:
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Xxxxx
Xxxx
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Chief
Executive Officer, President
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ARTICLE
IV
SPECIAL
COVENANTS
Section 4.1 Access to Properties and
Records. Prior to closing, CA and CAH will
each afford to the officers and authorized representatives of the other full
access to the properties, books and records of each other, in order that each
may have full opportunity to make such reasonable investigation as it shall
desire to make of the affairs of the other and each will furnish the other with
such additional financial and operating data and other information as to the
business and properties of each other, as the other shall from time to time
reasonably request.
Section 4.2 Availability of Rule
144. CA and CAH shareholders holding "restricted securities, "
as that term is defined in Rule 144 promulgated pursuant to the Securities Act
will remain as “restricted securities”. CA is under no obligation to
register such shares under the Securities Act, or otherwise. The stockholders of
CA and CAH holding restricted securities of CA and CAH as of the date of this
Agreement and their respective heirs, administrators, personal representatives,
successors and assigns, are intended third party beneficiaries of the provisions
set forth herein. The covenants set forth in this Section 4.2 shall
survive the Closing and the consummation of the transactions herein
contemplated.
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Section 4.3 Special Covenants and Representations
Regarding the CA Common Shares to be Issued in the
Exchange. The consummation of this Agreement, including the
issuance of the CA Common Shares to the Shareholders of CAH as contemplated
hereby, constitutes the offer and sale of securities under the Securities Act,
and applicable state statutes. Such transaction shall be consummated
in reliance on exemptions from the registration and prospectus delivery
requirements of such statutes which depend, inter alia, upon the circumstances
under which the CAH Shareholders acquire such securities.
Section 4.4 Third Party
Consents. CA and CAH agree to cooperate with each other
in order to obtain any required third party consents to this Agreement and the
transactions herein contemplated.
Section 4.5 Actions Prior and Subsequent to
Closing.
(a) From
and after the date of this Agreement until the Closing Date, except as permitted
or contemplated by this Agreement, CA and CAH will each use its best efforts
to:
(i) maintain
and keep its properties in states of good repair and condition as at present,
except for depreciation due to ordinary wear and tear and damage due to
casualty;
(ii) maintain
in full force and effect insurance comparable in amount and in scope of coverage
to that now maintained by it;
(iii)
perform in all material respects all of its obligations under material
contracts, leases and instruments relating to or affecting its assets,
properties and business;
(b) From
and after the date of this Agreement until the Closing Date, CA will not,
without the prior consent of CAH:
(i)
except as otherwise specifically set forth herein, make any change in its
articles of incorporation or bylaws;
(ii)
declare or pay any dividend on its outstanding Common Shares, except as may
otherwise be required by law, or effect any stock split or otherwise change its
capitalization, except as provided herein;
(iii)
enter into or amend any employment, severance or agreements or arrangements with
any directors or officers;
(iv)
grant, confer or award any options, warrants, conversion rights or other rights
not existing on the date hereof to acquire any Common Shares; or
(v)
purchase or redeem any Common Shares.
Section 4.6 Indemnification.
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(a) CA
hereby agrees to indemnify CAH, each of the officers, agents and directors
and current shareholders of CAH as of the Closing Date against any loss,
liability, claim, damage or expense (including, but not limited to, any
and all expense whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened or any claim
whatsoever), to which it or they may become subject to or rising out of or
based on any inaccuracy appearing in or misrepresentation made in this
Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement;
and
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(b) CAH
hereby agrees to indemnify CA, each of the officers, agents, directors and
current shareholders of CA as of the Closing Date against any loss,
liability, claim, damage or expense (including, but not limited to, any
and all expense whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened or any claim
whatsoever), to which it or they may become subject arising out of or
based on any inaccuracy appearing in or misrepresentation made in this
Agreement. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated
hereby and termination of this
Agreement.
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ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF CA
The obligations of CA under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section 5.1 Accuracy of
Representations. The representations and warranties made by CA
in this Agreement were true when made and shall be true at the Closing Date with
the same force and effect as if such representations and warranties were made at
the Closing Date (except for changes therein permitted by this Agreement), and
CA shall have performed or compiled with all covenants and conditions required
by this Agreement to be performed or complied with by CA prior to or at the
Closing. CAH shall be furnished with a certificate, signed by a duly
authorized officer of CA and dated the Closing Date, to the foregoing
effect.
Section 5.2 Director Approval. The
Board of Directors of CA shall have approved this Agreement and the transactions
contemplated herein.
Section 5.3 Officer's
Certificate. CAH shall have been furnished with a certificate
dated the Closing Date and signed by a duly authorized officer of CA to the
effect that: (a) the representations and warranties of CA
set forth in the Agreement and in all Exhibits, Schedules and other documents
furnished in connection herewith are in all material respects true and correct
as if made on the Effective Date; (b) CA has performed all
covenants, satisfied all conditions, and complied with all other terms and
provisions of this Agreement to be performed, satisfied or complied with by it
as of the Effective Date; (c) since such date and other
than as previously disclosed to CAH, CA has not entered into any material
transaction other than transactions which are usual and in the
ordinary course if its business; and (d) no litigation, proceeding,
investigation or inquiry is pending or, to the best knowledge of CA, threatened,
which might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement or, to the extent not disclosed in
the CA Schedules, by or against CA which might result in any material adverse
change in any of the assets, properties, business or operations of
CA.
Section 5.4 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with the lapse of time or
the giving of notice, may cause or create any material adverse change in the
financial condition, business or operations of CA.
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Section 5.5 Other Items. CAH
shall have received such further documents, certificates or instruments relating
to the transactions contemplated hereby as CAH may reasonably
request.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF CAH
The obligations of CAH under this
Agreement are subject to the satisfaction, at or before the Closing date (unless
otherwise indicated herein), of the following conditions:
Section 6.1 Accuracy of
Representations. The representations and warranties made by
CAH in this Agreement were true when made and shall be true as of the Closing
Date (except for changes therein permitted by this Agreement) with the same
force and effect as if such representations and warranties were made at and as
of the Closing Date, and CAH shall have performed and complied with all
covenants and conditions required by this Agreement to be performed or complied
with by CAH prior to or at the Closing. CA shall have been furnished
with a certificate, signed by a duly authorized executive officer of CAH and
dated the Closing Date, to the foregoing effect.
Section 6.2 Director
Approval. The Board of Directors of CAH shall have
approved this Agreement and the transactions contemplated herein.
Section 6.3 Officer's
Certificate. CA shall be furnished with a certificate
dated the Closing date and signed by a duly authorized officer of CAH to the
effect that: (a) the representations and warranties of CAH set forth
in the Agreement and in all Exhibits, Schedules and other documents furnished in
connection herewith are in all material respects true and correct as if made on
the Effective Date; and (b) CAH had performed all covenants, satisfied all
conditions, and complied with all other terms and provisions of the Agreement to
be performed, satisfied or complied with by it as of the Effective
Date.
Section 6.4 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with the lapse of time or
the giving of notice, may cause or create any material adverse change in the
financial condition, business or operations of CAH.
ARTICLE
VII
MISCELLANEOUS
Section 7.1 Brokers and
Finders. Each party hereto hereby represents and
warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
Section 7.2 Law, Forum and
Jurisdiction. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Jersey, United
States of America.
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Section 7.3 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail or
certified mail, postage prepaid, or by prepaid telegram addressed as
follows:
|
If
to CA:
|
000
Xxxxxxxx Xxxx,
|
| Xxxxxxx, Xxxxx Xxxxxxxx 00000 |
|
If
to CAH:
|
000
Xxxxxxxx Xxxx,
|
| Xxxxxxx, Xxxxx Xxxxxxxx 00000 |
or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered, mailed or
telegraphed.
Section 7.4 Attorneys' Fees. In
the event that any party institutes any action or suit to enforce this Agreement
or to secure relief from any default hereunder or breach hereof, the breaching
party or parties shall reimburse the non-breaching party or parties for all
costs, including reasonable attorneys' fees, incurred in connection therewith
and in enforcing or collecting any judgment rendered therein.
Section 7.5 Confidentiality. Each
party hereto agrees with the other party that, unless and until the transactions
contemplated by this Agreement have been consummated, they and their
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any books or records or from personal
inspection, of such other party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent
such data is a matter of public knowledge or is required by law to be published;
and (ii) to the extent that such data or information must be used or
disclosed in order to consummate the transactions contemplated by this
Agreement.
Section 7.6 Schedules;
Knowledge. Each party is presumed to have full knowledge of
all information set forth in the other party's schedules delivered pursuant to
this Agreement.
Section 7.7 Third Party
Beneficiaries. This contract is solely between CA and CAH and except
as specifically provided, no director, officer, stockholder, employee, agent,
independent contractor or any other person or entity shall be deemed to be a
third party beneficiary of this Agreement.
Section 7.8 Entire
Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of
dealing, understanding, agreements, representations or warranties, written or
oral, except as set forth herein. This Agreement may not be amended
or modified, except by a written agreement signed by all parties
hereto.
Section 7.9 Survival;
Termination. The representations, warranties and covenants of
the respective parties shall survive the Closing Date and the consummation of
the transactions herein contemplated for 18 months.
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Section 7.10 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
Section 7.11 Amendment or
Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section 7.12 Expenses. Each party
herein shall bear all of their respective cost s and expenses incurred in
connection with the negotiation of this Agreement and in the consummation of the
transactions provided for herein and the preparation thereof.
Section 7.13 Headings; Context. The
headings of the sections and paragraphs contained in this Agreement are for
convenience of reference only and do not form a part hereof and in no way
modify, interpret or construe the meaning of this Agreement.
Section 7.14 Benefit. This Agreement
shall be binding upon and shall inure only to the benefit of the parties hereto,
and their permitted assigns hereunder. This Agreement shall not be
assigned by any party without the prior written consent of the other
party.
Section 7.15 Public
Announcements. Except as may be required by law, neither party shall
make any public announcement or filing with respect to the transactions provided
for herein without the prior consent of the other party hereto.
Section 7.16 Severability. In the
event that any particular provision or provisions of this Agreement or the other
agreements contained herein shall for any reason hereafter be determined to be
unenforceable, or in violation of any law, governmental order or regulation,
such unenforceability or violation shall not affect the remaining provisions of
such agreements, which shall continue in full force and effect and be binding
upon the respective parties hereto.
Section 7.17 Failure of Conditions;
Termination. In the event of any of the conditions specified
in this Agreement shall not be fulfilled on or before the Closing Date, either
of the parties have the right either to proceed or, upon prompt written notice
to the other, to terminate and rescind this Agreement. In such event,
the party that has failed to fulfill the conditions specified in this Agreement
will liable for the other parties legal fees. The election to proceed
shall not affect the right of such electing party reasonably to require the
other party to continue to use its efforts to fulfill the unmet
conditions.
Section 7.18 No Strict
Construction. The language of this Agreement shall be construed as a
whole, according to its fair meaning and intendment, and not strictly for or
against either party hereto, regardless of who drafted or was principally
responsible for drafting the Agreement or terms or conditions
hereof.
Section 7.19 Execution Knowing and
Voluntary. In executing this Agreement, the parties severally
acknowledge and represent that each: (a) has fully and carefully read
and considered this Agreement; (b) has been or has had the
opportunity to be fully apprized by its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; (c) is
executing this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
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Section
7.20 Amendment. At any time after the
Closing Date, this Agreement may be amended by a writing signed by both parties,
with respect to any of the terms contained herein, and any term or condition of
this Agreement may be waived or the time for performance hereof may be extended
by a writing signed by the party or parties for whose benefit the provision is
intended.
Section 7.21 Conflict of
Interest. Both CAH and CA understand that Xxxxxx &
Xxxxxx, LLP is representing both parties in this transaction which represents a
conflict of interest. Both CAH and CA have the right to different
counsel due to this conflict of interest. Notwithstanding the above,
both CAH and CA agree to waive this conflict and have Xxxxxx & Jaclin, LLP
represent both parties in the above-referenced transaction. Both CAH
and CA agree to hold this law firm harmless from any and all liabilities that
may occur or arise due to this conflict.
15
IN WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, and entered into as of the date
first above written.
|
ATTEST:
|
|
| /s/ Xxxxx Xxxxxxxx | By: /s/ Xxxxx Xxxx |
| Xxxxx Xxxx | |
| President |
|
ATTEST:
|
Color
Accents, Inc.
|
| /s/ Xxxxx Xxxxxxxx | By: /s/ Xxxxx Xxxx |
| Xxxxx Xxxx | |
| President |
16
