EXHIBIT 2.1
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AGREEMENT OF SALE
dated June 17, 2005
between
XXXXXX INTERNATIONAL, INC.
Seller
and
BROOKSTREET CAPITAL CORP.
Purchaser
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AGREEMENT OF PURCHASE AND SALE OF STOCK
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AGREEMENT OF SALE, made June 17, 2005, between XXXXXX INTERNATIONAL, INC., a
Delaware corporation, having an address at 000 Xxxxxxxx Xxxxxx Xxxxx Xxxx,
#000, Xxxxxxxxx, XX X0X 0X0 Canada, ("Seller"), and BROOKSTREET CAPITAL CORP.,
a Delaware corporation, having an address at c/o Xxxxxxx X. Xxxxxx, Esq., 000
Xxxxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 ("Purchaser").
W I T N E S S E T H:
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WHEREAS, Purchaser desires to acquire, and Seller desires to sell, the shares
of stock of Montebello Developments Corp. upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements hereafter set
forth, and other valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties hereto agree as follows:
1. Agreement To Sell. Seller agrees to sell, transfer and deliver to
Purchaser, and Purchaser agrees to purchase, upon the terms and conditions
hereinafter set forth, the 100 shares of the capital stock of MONTEBELLO
DEVELOPMENTS CORP., a corporation organized under the laws of Ontario (the
"Corporation"), said shares constituting all of the authorized and issued
shares of the Corporation (the "Shares").
2. Purchase Price. The purchase price to be paid by Purchaser is TWO HUNDRED
FIFTY THOUSAND DOLLARS (US$250,000.00), payable as follows:
(a) Two Hundred Fifty Thousand Dollars (US$250,000.00) at the closing by
the execution and delivery of a Promissory Note by Purchaser to Seller in
said amount, substantially in the form of Exhibit A hereto (the
"Promissory Note"), secured by a Stock Pledge Agreement substantially in
the form of Exhibit B hereto (the "Stock Pledge Agreement"), and further
secured by a Security Agreement substantially in the form of Exhibit C
hereto and UCC Financing Statements creating a security interest in the
assets of the Corporation (the "Security Agreement").
3. The Closing. The "closing" means the settlement of the obligations of
Seller and Purchaser to each other under this agreement, including the payment
of the purchase price to Seller as provided in Article 1 hereof and the
delivery of the closing documents provided for in Article 4 hereof. The
closing shall be held at the offices of Xxxxxxx X. Xxxxxx, Esq., 000 Xxxxxxxx,
Xxxxx 000, Xxx Xxxx, XX 00000, at 10 A.M. on or about June 30, 2005 (the
"closing date").
4. Closing Documents. At the closing Seller shall execute and deliver to
Purchaser:
(a) the certificate or certificates for the Shares, duly endorsed so as
to effectively transfer ownership of the Shares to Purchaser, together
with all appropriate Federal and State transfer tax stamps affixed
(subject to the obligation of Purchaser to deposit the Shares with Seller
in accordance with the provisions of the Stock Pledge Agreement)
(b) letters of resignation from each director and officer of the
Corporation, effective as of the closing hereunder, together with a
certificate of the resigning secretary of the Corporation, duly certified
by the resigning president and each resigning director of the Corporation,
certifying that at a meeting of the directors of the Corporation, duly
called and held and at which a quorum was present, the resignation of the
officers and directors thereof was accepted, and that there were duly
elected in the place thereof, effective as of the closing hereunder, such
persons as Purchaser theretofore shall have designated in writing as
officers and directors of the Corporation
(c) the Certificate of Incorporation or other organizational documents of
the Corporation, and the Bylaws, minute book, stock certificate book, and
seal of the Corporation; any bills, vouchers, records showing the
ownership of the furniture, furnishings, equipment, other property used in
the operation of the Corporation; and all other books of account, records
and contracts of the Corporation
(d) such other instruments in form and substance satisfactory to
Purchaser's attorney as may be necessary or proper to transfer to
Purchaser good and marketable title to all other ownership interests in
the Corporation to be transferred under this agreement
At the closing Seller shall deliver to Purchaser all keys for the business.
Seller shall do all further acts and things as may be necessary, or reasonably
requested by Purchaser, to consummate the transactions contemplated by this
agreement, including the acquisition of possession of the Corporation. Seller
shall advise Purchaser of, and cause to be delivered to Purchaser, all trade
secrets and proprietary information pertaining to the business.
At the closing Purchaser shall execute and deliver to Seller:
(a) the Promissory Note, Stock Pledge Agreement, Security Agreement and
UCC Financing Statements provided for in Article 2 hereof
5. Representations And Warranties Of Seller. Seller represents and warrants
to Purchaser as follows:
(a) Seller is a corporation duly organized and validly existing under the
laws of Delaware, and is duly qualified to do business in New York.
Seller has full power and authority to carry out and perform its
undertakings and obligations as provided herein. The execution and
delivery by Seller of this agreement and the consummation of the
transactions contemplated herein have been duly authorized by the Board of
Directors of Seller and will not conflict with or breach any provision of
the Certificate of Incorporation or Bylaws of Seller, and do not and will
not conflict with or result in any breach of any condition or provision of,
or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon the Corporation by reason of the
provisions of any contract, lien, lease, agreement, instrument or judgment
to which Seller is a party, or which is or purports to be binding upon
Seller or which affects or purports to affect the Corporation. No further
action or approval, corporate or otherwise, is required in order to
constitute this agreement the binding and enforceable obligation of
Seller.
(b) No action, approval, consent or authorization, including without
limitation any action, approval, consent or authorization of any
governmental or quasi-governmental agency, commission, board, bureau or
instrumentality, is necessary for Seller to constitute this agreement the
binding and enforceable obligation of Seller or to consummate the
transactions contemplated hereby.
(c) The Corporation is a corporation duly organized under the laws of
Ontario, and the Corporation is validly existing and has not been
dissolved. The copies of the documents pertaining to the organization of
the Corporation provided by Seller to Purchaser are true and complete
copies of said documents.
(d) Seller is the owner of the Shares, and the Shares are all of the
issued and outstanding shares of stock of the Corporation. All of the
Shares have no par value, are fully paid and non-assessable, have not been
assigned, pledged or hypothecated, and are free of all liens, claims and
encumbrances. There are no outstanding rights for subscription to any
additional stock of the Corporation by any person or entity. There are no
unpaid dividends heretofore declared, if any, to any stockholder of the
Corporation.
(e) There are no violations of any law or governmental rule or regulation
pending or, to the best of Seller's knowledge, threatened against Seller,
the Shares or the Corporation. Seller and the Corporation have complied
with all laws and governmental rules and regulations applicable to the
business or the Assets.
(f) There are no judgments, liens, suits, actions or proceedings pending
or, to the best of Seller's knowledge, threatened against Seller, the
Shares or the Corporation. Neither Seller, the Shares nor the Corporation
are a party to, subject to or bound by any agreement or any judgment or
decree of any court, governmental body or arbitrator which would conflict
with or be breached by the execution, delivery or performance of this
agreement, or which could prevent the carrying out of the transactions
provided for in this agreement, or which could prevent the use by
Purchaser of the Corporation or adversely affect the conduct of the
business by Purchaser.
(g) The Corporation has not entered into, and is not subject to, any: (i)
written contract or agreement for the employment of any employee of the
business; (ii) contract with any labor union or guild; (iii) pension,
profit-sharing, retirement, bonus, insurance, or similar plan with respect
to any employee of the business; or (iv) similar contract or agreement
affecting or relating to the Corporation.
(h) The Corporation has filed each tax return, including without
limitation all income, excise, property, gain, sales, franchise and
license tax returns, required to be filed by the Corporation prior to the
date hereof. Each such return is true, complete and correct, and the
Corporation has paid all taxes, assessments and charges of any
governmental authority required to be paid by it and has created reserves
or made provision for all taxes accrued but not yet payable. No
government is now asserting, or to Seller's knowledge threatening to
assert, any deficiency or assessment for additional taxes or any interest,
penalties or fines with respect to the Corporation.
At the closing Seller shall execute and deliver an affidavit setting forth the
above representations as of the date of the closing.
6. Representations And Warranties Of Purchaser. Purchaser represents and
warrants to Seller as follows:
(a) Purchaser is a corporation duly organized and validly existing under
the laws of Delaware. Purchaser has full power and authority to carry out
and perform its undertakings and obligations as provided herein. The
execution and delivery by Purchaser of this agreement and the consummation
of the transactions contemplated herein have been duly authorized by the
Board of Directors of Purchaser and will not conflict with or breach any
provisionof the Certificate of Incorporation or Bylaws of Purchaser. No
further action or approval, corporate or otherwise, is required in order
to constitute this agreement the binding and enforceable obligation of
Purchaser.
(b) No action, approval, consent or authorization, including without
limitation any action, approval, consent or authorization of any
governmental or quasi-governmental agency, commission, board, bureau or
instrumentality, is necessary for Purchaser to constitute this agreement
the binding and enforceable obligation of Purchaser or to consummate the
transactions contemplated hereby.
7. Conduct Of The Business. Seller, until the closing, shall:
(a) conduct the business in the normal, useful and regular manner;
(b) preserve the business and the goodwill of the customers and suppliers
of the business and others having relations with Seller; and
(c) give Purchaser and its duly designated representatives reasonable
access to the premises of the Corporation and the books and records of the
Corporation, and furnish to Purchaser such data and information pertaining
to the Corporation as Purchaser from time to time reasonably may request.
It is the understanding of the parties that the Corporation is being sold as an
ongoing business. Seller shall endeavor to cause the operations of the
Corporation to continue be conducted, from the date of this agreement until the
closing, in substantially the same fashion as such operations have been
conducted during the preceding year.
8. Conditions To Closing. The obligations of Purchaser to close hereunder are
subject, at the option of Purchaser, to the following conditions:
(a) All of the terms, covenants and conditions to be complied with or
performed by Seller under this agreement on or before the closing shall
have been complied with or performed in all material respects.
(b) All representations or warranties of Seller herein are true in all
material respects as of the closing date.
(c) On the closing date, there shall be no liens or encumbrances against
the Corporation, except as may be provided for herein.
9. Indemnification. Each party hereto shall indemnify and hold the other
party harmless from and against all liability, claim, loss, damage or expense,
including reasonable attorneys' fees, incurred or required to be paid by such
other party by reason of any breach or failure of observance or performance of
any representation, warranty or covenant or other provision of this agreement
by such party.
10. Brokerage. The parties hereto represent and warrant to each other that
they have not dealt with any broker or finder in connection with this agreement
or the transactions contemplated hereby, and no broker or any other person is
entitled to receive any brokerage commission, finder's fee or similar
compensation in connection with this agreement or the transactions contemplated
hereby.
11. Assignment. Purchaser shall not assign this agreement without the prior
written consent of Seller in each instance.
12. Notices. All notices, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been properly given if delivered by hand or by Federal Express courier or by
registered or certified mail, return receipt requested, with postage prepaid,
to Seller or Purchaser, as the case may be, at their addresses first above
written, or at such other addresses as they may designate by notice given
hereunder.
13. Survival. The representations, warranties and covenant contained herein
or in any document, instrument, certificate or schedule furnished in connection
herewith shall survive the delivery of the Xxxx of Sale and shall continue in
full force and effect after the closing, except to the extent waived in
writing.
14. Further Assurances. In connection with the transactions contemplated by
this agreement, the parties agree to execute and deliver such further
instruments, and to take such further actions, as may be reasonably necessary
or proper to effectuate and carry out the transactions contemplated in this
agreement.
15. Changes Must Be In Writing. No delay or omission by either Seller or
Purchaser in exercising any right shall operate as a waiver of such right or
any other right. This agreement may not be altered, amended, changed,
modified, waived or terminated in any respect or particular unless the same
shall be in writing signed by the party to be bound. No waiver by any party of
any breach hereunder shall be deemed a waiver of any other or subsequent
breach.
16. Captions And Exhibits. The captions in this agreement are for convenience
only and are not to be considered in construing this agreement. The Exhibits
annexed to this agreement are an integral part of this agreement, and where
there is any reference to this agreement it shall be deemed to include said
Exhibits.
17. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. Binding Effect. This agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
SIGNATURES
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IN WITNESS WHEREOF, the parties have executed this agreement the date first
above written.
XXXXXX INTERNATIONAL, INC.
ATTEST:
Per /s/ Xxxxxx Xxxx
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XXXXXX XXXX, Chairman
Per /s/ Xxxx-Xxxx Xxxx
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Secretary
BROOKSTREET CAPITAL CORP.
ATTEST:
Per /s/ Xxxxx Xxx
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XXXXX XXX, President
Per /s/ Xxxxx Xxx
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Secretary
