Exhibit 10.1
SHARE PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") as of February 9,
2000 by and between MIRACLE ENTERTAINMENT, INC. formerly known as 1ST MIRACLE
GROUP, INC., ("MIRACLE" and or "BUYER"), a New York corporation, and a
wholly-owned subsidiary of 1ST MIRACLE GROUP INC. (Canada), having its principle
place of business at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxxx Xxxxxxxxx,
Xxxxxxxxxx 00000, K-9 PROTECTION, INC. ("K-9" OR THE "CORPORATION"), a Nevada
corporation with its principle place of business at 0000 Xxxxxxxx Xxxx, Xxx
Xxxxx, Xxxxxx 00000, and the SHAREHOLDERS OF K-9 PROTECTION, INC. (collectively
the "Shareholders" or "SELLERS"), being the owners of record of all of the
issued and outstanding stock of K-9.
W I T N E S S E T H:
WHEREAS, SELLERS are desirous of selling, transferring and/or
exchanging all the issued and outstanding shares of Common Stock, $.001 par
value (" K-9 Common Stock") owned by SELLERS in K-9 or issuable to the SELLERS
upon the conversion or exercise of derivative securities of K-9 (collectively,
the "K-9 Shares"); and
WHEREAS, BUYER is desirous of purchasing from SELLERS the K-9 Shares;
and
WHEREAS, the Share Purchase/Plan of Reorganization was agreed upon on
February 9, 2000, supplemented and modified on March 18, 2000 and July 5, 2000;
and
WHEREAS, the parties are desirous of memorializing the Agreement and
supplemental agreements by the within Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
CONDITIONS HEREINAFTER SET FORTH, THE PARTIES AGREE AS
FOLLOWS:
1. SALE AND PURCHASE OF COMMON STOCK
Subject to the satisfaction of the terms and conditions of this
Agreement, and in reliance upon the covenants, representations and warranties
contained herein:
1.1 Sale of K-9 Shares Owned by SELLERS
As of the Closing Date (as hereinafter defined), each of the SELLERS
shall sell, assign, convey, exchange and transfer to BUYER, free and clear of
any liens or encumbrances or restrictions, and BUYER shall purchase and/or
receive in exchange from each SELLER, all right, title, and interest of such
SELLER in and to the K-9 Shares owned by such SELLER for the consideration
stated herein. It is understood and agreed that the delivery of an executed copy
of this Agreement from each such SELLER or SELLER's authorized representative is
a condition precedent to the closing (as hereinafter defined).
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2. PURCHASE PRICE AND EXCHANGE BY BUYER FOR K-9 COMMON STOCK
2.1 Purchase Price.
The purchase price for the K-9 Shares (the "Purchase Price")
shall consist of $200,000 payable on closing to SELLER'S representative Xxxxxxx
& Xxxxxxxx, Ltd. ("SELLERS' REPRESENTATIVE") and to be distributed to SELLERS
pro-rata, based on their respective ownership of the K-9 Shares as set forth in
Exhibit "I" annexed hereto.
2.2 Delivery of Certificates.
Each Shareholder shall deliver such certificates(s) to MIRACLE, and
shall receive in exchange a pro-rata payment for the K-9 shares based upon the
agreed purchase price of $200,000. The transfer of K-9 Shares by the
Shareholders shall be effected by the delivery to MIRACLE at the Closing of
certificates representing the transferred K-9 Shares endorsed in blank or
accompanied by stock powers executed in blank.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each STOCKHOLDER represents jointly and severally as to himself or
itself, as applicable, as follows:
3.1 Authorization of Agreement
SELLERS have the power and authority to enter into this
Agreement and to sell to BUYER the K-9 Shares. This Agreement constitutes the
legal, valid and binding obligation of SELLERS and is, enforceable against
SELLERS in accordance with its terms. Neither the execution and performance of
this Agreement, nor the consummation of the transactions contemplated hereby
will result in the violation of any provision of state, federal law, or the law
of any foreign jurisdiction, any order by any court or other agency of
government applicable to SELLERS.
3.2 Title to the Shares
SELLER owns, and will on the Closing Date convey and exchange
title to the K-9 Shares owned by him or it, free and clear of any liens,
encumbrances and restrictions.
SELLER or SELLERS REPRESENTATIVE, on closing, will issue a
General Release in favor of the CORPORATION as contained in this Agreement.
3.3 Broker or Finder.
There is no person, firm or corporation retained by SELLERS
which is entitled to any brokerage or finders' fee with respect to the sale of
K-9 Shares by SELLERS except for Ocean Wind, Ltd. SELLERS will indemnify and
hold BUYER harmless from any claim for brokerage or finders' fees arising out of
the transactions contemplated by this Agreement made by any person, including
the Broker stated herein, claiming to have been engaged by SELLERS.
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3.4 Further Assurances.
At the Closing and from time to time thereafter, the
Shareholders shall execute such additional instruments and take such other
action as MIRACLE may request in order sell, transfer, and assign the K-9 Shares
to MIRACLE and to confirm MIRACLE's title thereto.
4. REPRESENTATIONS AND WARRANTIES OF K-9 AND SELLERS
K-9 and each SELLER to its knowledge represents and warrants severally
and jointly as follows:
4.1 Organization
K-9 is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Nevada. There are no subsidiary
corporations of K-9. Additionally, K-9 warrants and represents that it is a
reporting company under Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and has filed all reports required to be filed
under the Exchange Act as of the date of this Agreement. K-9 also agrees to file
or at MIRACLE's sole discretion, assist Miracle with the filing of a Form 8-K/A
Report amending any prior filings so as to disclose the terms of this
transaction.
4.2 Qualification
The CORPORATION has the corporate power and authority to own
its properties and to carry on its business as now being conducted and is
qualified to do business and is in good standing in every jurisdiction in which
the nature of its business or the ownership or leasing of its properties require
such qualification.
4.3 Authorization of Agreement
(a) SELLERS' REPRENTATIVE has received written authorization
from all Shareholders to execute the within Agreement and any other
documentation to facilitate the sale of the K-9 Shares.
(b) The Board of Directors of K-9 , by resolution duly adopted
at a meeting or by unanimous written consent has duly approved this Agreement.
(c) This Agreement constitutes the legal, valid and binding
obligation of K-9 and is enforceable in accordance with its terms. Neither the
execution and performance of this Agreement, nor the consummation of the
transactions contemplated hereby will result in the violation of any provision
of state, federal law, or the law of any foreign jurisdiction, any order by any
court or other agency of government applicable to SELLERS or the CORPORATION,
the Certificate of Incorporation or By-laws of the CORPORATION or any indenture,
Financing Agreement, Stockholders Agreement, or other instrument or agreement to
which they are a party or by which they are bound, or be in conflict herewith,
result in a breach thereof, or constitute (with due notice or lapse of time or
both) a default thereunder.
4.4 Capitalization
K-9 and SELLERS represent that all of the issued and
outstanding shares of capital stock of K-9 aggregate 1,025,000 shares as
enumerated in Exhibit I, annexed hereto and made a part hereof, and all of said
Shareholders have authorized SELLERS' REPRESENTATIVE to release said 1,025,000
shares in escrow and to release the share certificates and stock powers to
MIRACLE upon payment.
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4. 5 Financial Statements
(a) The financial statements (Schedule 4.5) of K-9 for the
year ended December 31, 1998, audited by Xxxxx X. Xxxxxxxx, Certified Public
Accountant, consisting a balance sheet, statement of operations, statement of
cash flows and statement of stockholders' equity, including the footnotes, have
been prepared in accordance with generally accepted accounting principles
("GAAP") applied on a consistent basis and fairly present the financial position
of the CORPORATION.
(b) The unaudited financial statements (Schedule 4.5) of K-9
as of September 30, 1999 consisting of a balance sheet, statement of operations,
statement of cash flows and statement of stockholders' equity, have been
prepared in accordance with GAAP applied on a consistent basis, and fairly
present the financial position of the CORPORATION as at September 30, 1999,
subject to normal year end audit adjustments, provided such adjustments are not
material individually or in the aggregate.
(c) There has been no material adverse change in the
financial condition, results of operations, assets or liabilities of the
CORPORATION since September 30, 1999 which has not been adequately provided for
or disclosed in the financial statements or that has not been disclosed in
writing to BUYER.
4.6 Regulation
The CORPORATION has obtained and maintains all permits and
licenses which are necessary for the conduct of its business.
4.7 Taxes
The CORPORATION has filed all tax returns as may be required
by the CORPORATION including, without limitation, income, franchise, sales, use
and payroll tax returns, and all annual reports and other returns and reports,
heretofore required to be filed by them. All taxes known to be due on such
returns have been paid, other than taxes not yet due or which may hereafter be
paid without penalty. The CORPORATION'S federal, state or country of
incorporation income tax returns have not, since formation of the CORPORATION,
and to SELLERS' knowledge and belief, been audited by the Internal Revenue
Service (or applicable governmental agency) or by any state taxing authority in
the jurisdictions in which the CORPORATION is incorporated, qualified or
conducts business. SELLERS have no knowledge of any tax deficiency or additional
assessments not adequately provided for on the books of the CORPORATION. There
are no tax audits, pending or due, and SELLERS have received no notice from any
person agency or authority that a tax audit may be imminent.
4.8 Litigation
There are no actions, suits or proceedings, pending or, to the
best of the knowledge of SELLERS, threatened, at law or in equity or, involving
the possibility of a judgment against the CORPORATION.
4.9 Indebtedness
There exist no default by the CORPORATION under the
provisions of any instrument evidencing any indebtedness of the CORPORATION or
any agreement relating thereto which entitles the holder thereof to accelerate
the repayment of any such indebtedness.
4.10 Title to Properties
The CORPORATION has good and marketable title to the
properties and assets owned by it, and there are no mortgages, pledges, liens,
charges, security interests or encumbrances against said property or assets.
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4. 11 Absence of Certain Changes with respect to CORPORATION.
Except as set forth in the financial statements, and officers
certificates of the CORPORATION between September 30, 1999, and the date of
execution of this Agreement, there has not been:
(a) Any material adverse change in the condition, assets
liabilities or business of the CORPORATION, from that shown in the financial
statements.
(b) Any damage, destruction or loss of any of the properties
or assets of the CORPORATION (whether or not covered by insurance) materially
adversely affecting the business of the CORPORATION, taken as a whole;
(c) Any declaration or setting aside for payment of any
dividends or other distribution in respect of any of the issued and outstanding
K-9 stock, or any direct or indirect redemption, dividends, purchase or other
acquisition of any such stock.
(d) Any labor trouble of any character, materially adversely
affecting the business of the CORPORATION, taken as a whole;
(e) Any material increase (individually or in the aggregate),
except in the ordinary course of business, in the contingent obligations of the
CORPORATION by way of guaranty, endorsement, indemnity, warranty or otherwise;
(f) Any waiver or compromise by the CORPORATION of a valuable
right or of a material debt owed to them, taken as a whole;
(g) Any loans made by the CORPORATION to its employees,
officers, or directors;
(h) There has not been any issuance or sale by the CORPORATION
of any shares of its common stock or other securities;
(i) Any agreement or commitment by the CORPORATION to do any
of the things described in this Section that would be in violation of the
warranties and representations contained herein.
(j) There has been no material change with respect to the
payment of salaries or other benefits to employees of the CORPORATION.
4.12 Performance of Contracts; Leases; Agreements.
The CORPORATION and its affiliates are not a party to any
agreement (written or oral) or instrument or subject to any charter or other
corporate restriction materially adversely affecting its business, properties,
or assets, operations or condition, financial or otherwise. The CORPORATION is
not in material default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any agreement or
instrument to which it is a party.
4. 13 Shareholders' Directors and Officers; Indebtedness
There is no material indebtedness by the CORPORATION, to its
officers, directors, employees and shareholders or material indebtedness of such
persons to the CORPORATION. As of the Closing Date, all loans and advances to
SELLERS and their relatives from the CORPORATION, and from the CORPORATION to
SELLERS and their relatives, will have been paid in full.
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4.14 Consents
All material consents, approvals, qualifications, orders or
authorizations of, filings with, any governmental authority, or any other party
or entity, including any court, required in connection with SELLERS' valid
execution, delivery or performance of this Agreement or the consummation of any
other transaction contemplated on the part of the CORPORATION and SELLERS by
this Agreement and the agreements related hereto have been obtained.
4.15 Employees
To SELLERS' knowledge, no employee of the CORPORATION is, by
virtue of his employment by the CORPORATION and the nature of the duties which
he performs for the CORPORATION, in violation of any non-competition or
confidentiality agreement with any third-party. To SELLERS' knowledge, no union
is attempting to represent any of the CORPORATION'S employees as a collective
bargaining agent.
4. 16 No Pension and Retirement Plans
SELLERS warrant and represent to BUYER that there are no
pension and/or retirement plans of the CORPORATION. Additionally, SELLERS
warrant and represent that the CORPORATION does not have liability with respect
to any pension and/or retirement plans other than administration.
4.17 Personal Holding Company
To the best of SELLERS' knowledge and belief, the CORPORATION
is not a personal holding company, nor is it subject to a Xxxx Xxxxx Xxxxxx
filing.
4.18 Inactive Corporations
K-9 has no subsidiary corporation or corporations. SELLERS
warrant and represent that (a) any prior or past subsidiary corporations are
dissolved or are currently inactive, and (b) none of the inactive corporations,
to the best of SELLERS' knowledge, has any material unpaid liabilities, except
only franchise and similar taxes. SELLERS agree, at the Closing, to assign to
BUYER all of SELLERS' right, title and interest in and to each of the inactive
corporations.
4.19 Treasury Stock
All amounts payable for treasury stock, if any, has been fully
paid.
4.20 Due Diligence
SELLERS and K-9 warrant that their representatives have
conducted a due diligence review to their satisfaction of the business and
financial condition of MIRACLE and its subsidiaries as to the date of this
Agreement.
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4.21 Intellectual Property
(a) All intellectual property including but not limited to all
works in progress, software, software code, patents, trademarks, and copyrights
both common law and registered that are owned by CORPORATION are listed on
Schedule 4.21. Additionally, SELLERS and CORPORATION represent that there are no
claims for infringement with respect to the intellectual property on Schedule
4.21.
4.22 Year 2000 Compliance
That the CORPORATION warrants and represents that all of its
software systems and products are Year 2000 compliant.
4.23 Representations Complete
No representation or warranty of the SELLERS or K-9 contained to this
Agreement contains or will contain any untrue statement of a material fact, or
omits to state a material fact necessary to make any statement or act contained
herein or therein, in the light of the circumstances under which such statements
and acts were made, not misleading, except that any such document or certificate
which is dated speaks as of the date stated and not the present.
5. REPRESENTATIONS AND WARRANTIES OF BUYER
MIRACLE represents and warrants to K-9 and SELLERS as follows:
5.1 Organization and Qualification
MIRACLE is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York and has all the
requisite power and authority to own, lease and operate its properties and to
carry on its business as now being conducted and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of its business
or the ownership or leasing of its properties makes such qualification necessary
other than in such jurisdictions where the failure so to qualify or to be in
good standing would not, either individually or in the aggregate, have a
Material Adverse Effect. The copies of the certificate of incorporation and
by-laws of MIRACLE previously furnished to K-9 are true, complete and correct
copies of such documents as in effect on the date of this Agreement. As used
herein, "Material Adverse Effect" means any adverse change, circumstances or
effect that is materially adverse to the business, financial condition or
results of operations of MIRACLE, other than any change, circumstance or effect
relating to (i) the economy or securities markets in general, or (ii) the
industries in which Buyer operates and not specifically relating to BUYER which
has not been disclosed to SELLERS.
5.2 Broker or Finder
No person or company acting on BUYER'S behalf is entitled to
any brokerage or finder's fee in connection with the transactions contemplated
by this Agreement.
5.3 Authority: No Conflicts.
(a) MIRACLE has all the requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of MIRACLE. This Agreement has been or
will be duly executed and delivered by BUYER and constitute or will constitute
valid and binding agreements of MIRACLE, enforceable in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting creditors
generally, by general equity principles.
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(b) The execution and delivery of this Agreement by BUYER does not or will not,
as the case may be, and the consummation by MIRACLE of the transactions
contemplated hereby will not conflict with, or result in a violation pursuant to
(i) any provision of the certificate of incorporation or by-laws of MIRACLE (ii)
except as would not have a Material Adverse Effect, subject to obtaining or
making the consents, approvals, orders, authorizations, registrations,
declarations and filings referred to herein, or any loan or credit agreement
note, mortgage, bond, indenture, lease, benefit plan or other agreement,
obligation instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to MIRACLE its
properties or assets.
5.4 Litigation
As of the closing date, to the best of its knowledge, there
are no suits, actions or proceedings pending against Miracle.
5.5 Board Approval
The Board of Directors and sole stockholder of MIRACLE, by
resolutions duly adopted at meetings duly called and held and not subsequently
rescinded or modified in any way, has duly approved this Agreement and the
acquisition of K-9.
5. 6 Investment Matters
BUYER is purchasing the K-9 shares for its own account for
investment purposes only and not with a view to or for sale in connection with
any distribution thereof.
6. COVENANTS OF K-9 RELATING TO CONDUCT OF BUSINESS
K-9 agrees with MIRACLE as follows::
Conduct Pending Closing
No change will be made in the charter documents, by-laws, or
other corporate documents of MIRACLE and K-9 except that Stockholders of K-9
have approved a change of name of K-9 to MIRACLE Entertainment, Inc., or 1st
MIRACLE Group Inc, at the discretion of the Board of Directors of MIRACLE.
7. ADDITIONAL AGREEMENTS
7.1 Best Efforts.
(a) Subject to the terms and conditions of this Agreement,
each party will use its best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate the transactions contemplated by
this Agreement as soon as practicable after the date hereof.
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(b) In furtherance and not in limitation of covenants of the
parties contained in Section 7.1 (a), if any administrative or judicial action
or proceeding, including any proceeding by a private party, is instituted (or
threatened to be instituted) challenging any transaction contemplated by this
Agreement as violative of any regulatory law, K-9 shall cooperate in all
respects with each other and use their respective best efforts to contest and
resist any such action or proceeding and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction or other order, whether temporary,
preliminary or permanent, that is in effect and that prohibits, prevents or
restricts consummation of the transactions contemplated by this Agreement.
7.2 Fees and Expenses
BUYER and K-9 will be responsible for their respective costs
and expenses for all professional services incurred in connection with this
Agreement and the transactions contemplated hereby on the Closing Date.
8. CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE K-9 SHARES
Each obligation K-9 and SELLERS to be performed on the Closing
Date shall be subject to the satisfaction of each of the conditions stated in
the within Agreement and in this Section 8, except to the extent that such
condition is waived by BUYER in writing.
8.1 Performance by K-9 and SELLERS.
(a) K-9 and SELLERS shall have performed in all material respects all
obligations and agreements and complied in all material respects with all
covenants contained in this Agreement required to be performed or complied with
by them on or before Closing.
(b) K-9 's Officers and Board of Directors, as set forth in Schedule 8.1, will
submit their resignations upon closing.
8.2 Written Verification of Representations and Warranties
SELLERS and K-9 shall have delivered to MIRACLE a certificate
of the President and Chief Executive Officer of K-9 and all subsidiaries of K-9
in the form attached hereto as Exhibit "II" dated as of closing certifying that
all of the representations and warranties made by K-9 , its subsidiaries and
SELLERS in this Agreement are true and correct in all material respects on and
as of the closing date.
8.3 Defaults
There shall exists as of the Closing Date, no condition or
event which constitutes, or which after notice or lapse of time or both would
constitute a material default by SELLERS or K-9 under this Agreement.
9. CONDITIONS TO SELLERS' CLOSING OBLIGATIONS
Each obligation of BUYER to be performed on the Closing Date shall be
subject to the satisfaction of each of the conditions stated in this Section 9,
except to the extent that such satisfaction is waived by SELLERS in writing.
Performance by MIRACLE.
MIRACLE shall have performed in all material respects all
obligations and agreements and complied in all material respects with all
covenants contained in this Agreement required to be performed or complied with
by MIRACLE on or before Closing.
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10. TAXES FOR PERIOD ENDING ON CLOSING DATE
10.1 Preparation and Filing of Corporation Returns for the
CORPORATION.
(a) SELLERS, or their representatives at the expense of
MIRACLE (said cost to be reasonable and customary), shall prepare the federal,
state, local or foreign income and other tax returns of the CORPORATION
(collectively "Returns") for the period from the end of the most recent federal
income tax year of the CORPORATION to the Closing Date based on the books and
records of the CORPORATION maintained for such periods by the CORPORATION.
SELLERS shall submit such Returns to the CORPORATION and SELLERS shall promptly
execute and file such Returns. At the request of SELLERS, MIRACLE agrees to
cause the CORPORATION to make available to SELLERS, for the purpose of preparing
such Returns (and contesting any claims subsequently made for adjustment of such
Returns), all books and records of the CORPORATION for any relevant periods, and
SELLERS shall have the right to make extracts from and copies of such books and
records.
(b) BUYER will promptly notify the SELLERS in the event any
tax return of the CORPORATION for any taxable period that is audited. If the
SELLERS, by notice to MIRACLE, appoint a representative (the "Representative")
to participate in such audit, MIRACLE will keep the Representative apprised of
the status of the audit, provide him with copies of any revenue agent's reports,
30-day letters, 90-day letters or similar documents and allow him to participate
in the audit with respect to issues which, if decided adversely to the
CORPORATION, or would give rise to any claim by MIRACLE against SELLERS under
this Agreement. The parties hereto are aware that the provisions of the Internal
Revenue Code shall apply for purposes of any administrative or judicial
proceeding involving the federal income tax liability of the CORPORATION for any
Prior Period that is reflected on tax returns filed by SELLERS.
11. INDEMNIFICATION.
11.1 The SELLERS Obligation to Indemnify.
From and after the Closing Date, the SELLERS jointly and
severally shall, subject to the limitations hereinafter set forth, indemnify and
hold harmless MIRACLE and the CORPORATION from and against any and all actions,
suits, claims, demands, debts, liabilities, obligations, losses, damages, costs
and expenses, including without limitation reasonable attorney's fees
(collectively, "Damages"), arising out of or caused by any or all of the
following:
(a) Any misrepresentation or breach of any warranty or
representation made by SELLERS in this Agreement; and
(b) Any failure by SELLERS to perform any term or provision of
this Agreement to be performed by them.
11.2 Notices, Defenses and Payments.
With respect to each event, occurrence or matter
("Indemnification Matter") as to which BUYER, (referred to as the "Indemnitee"),
is entitled to indemnification from the SELLERS (the "Indemnitor") under this
Section 11:
(a) Upon the Indemnitee's receipt of written documents
underlying the Indemnification Matter, or, if the Indemnification Matter does
not involve a third party action, suit, claim or demand, after the Indemnitee
first has actual knowledge of the Indemnification Matter, the Indemnitee shall
promptly give notice to the Indemnitor of the nature of the Indemnification
Matter and the amount demanded or claimed in connection therewith
("Indemnification Notice").
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(b) If a third party action, suit, claim or demand is
involved, then, upon receipt of the Indemnification Notice, the Indemnitor
shall, at its expense and through counsel of its choice, assume and have sole
control over the litigation, defense or settlement thereof (collectively,
"Defense"), except that the Indemnitee may, at its option and expense and
through counsel of its choice, participate in the Defense. The Indemnitor and
the Indemnitee shall fully cooperate with each other in connection with such
third party action, suit, claim or demand, including without limitation by
furnishing all available documentary or other evidence as is reasonably
requested by the other.
(c) All amounts owed by the Indemnitor to the Indemnitee (if any) shall
be paid in full within thirty (30) days after a final settlement or agreement as
to the amount owed is reached, or after a final judgment or order (without
further right of appeal) determining the amount owed is rendered.
12. CLOSING.
The closing (the "Closing") under this Agreement will be subject to
mutual agreement to all exhibits and shall take place as soon as reasonably
practical (the "Closing Date").
13. NOTICES.
All notices, which are permitted or required under this Agreement shall
be in writing and delivered personally or sent by photocopy, facsimile or other
electronic means or by registered or certified mail, postage prepaid, addressed
as follows, or to such other person or address as may be designated by notice to
the other party:
If to K-9 and SELLERS:
0000 X. Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
With a copy to:
Xxxxxxx & Xxxxxxxx, Ltd.
0000 X. Xxxxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
If to MIRACLE:
0000 Xxxxxx Xxxx.
Xxxxxxxxx Xxxx
Xxxx Xxxxxxxxx, XX 00000
With a copy, which copy shall not constitute
notice, to:
Xxxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Notices will be deemed delivered (except as otherwise provided in this
Agreement) when delivered personally or upon being mailed by prepaid certified
or registered mail with return receipt requested or by such other method
(including air courier) which provides for a signed receipt upon delivery,
provided that any notice of change of address shall be effective only upon
receipt.
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The addresses set forth above shall be conclusive for all purposes
unless and until written notice of a change of addresses shall be sent to the
parties herein.
14. MISCELLANEOUS.
14.1 Payments.
All payments pursuant to this Agreement shall be made in
United States dollars.
14.2 Waiver, Remedies Cumulative, etc.
(a) Waiver.
No delay on the part of BUYER in the exercise of any right,
power, privilege or remedy hereunder shall operate as a waiver thereof, nor
shall any exercise or partial exercise of any such right, power, privilege or
remedy preclude any further exercise thereof or the exercise of any right,
power, privilege or remedy. No modification or waiver of any provision of this
Agreement, nor consent to any departure by MIRACLE or SELLERS therefrom, shall
be effective in any event unless the same shall be in writing, and then such
waiver, consent or modification shall be effective only in the specific
instance, and for the purpose, for which given.
(b) Special Waiver.
Notwithstanding the foregoing, BUYER shall have the right to
waive compliance by SELLERS with any of the provisions hereof, or to modify such
provisions to a less restrictive obligation of SELLERS, on such terms as BUYER
shall determine in its sole discretion, with or without prior notice to SELLERS.
(c) Remedies.
The rights, powers, privileges and remedies hereunder are
hereby expressly specified to be cumulative and not exclusive of any right,
power, privilege or remedy which the parties hereto would otherwise have, except
that the rights of the parties hereto to obtain damages shall be limited as
provided in the within Agreement.
14.3 Entire Agreement.
This Agreement and the other agreements provided for herein
embody the entire agreement and understanding among MIRACLE and K-9 and SELLERS,
and supersede all prior agreements and understandings between MIRACLE and K-9
and SELLERS relating to the subject matter hereof and thereof.
14.4 Parties in Interest.
All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
legal representatives, successors and assigns of the parties hereto, whether so
expressed or not; provided, however, MIRACLE shall have the right to assign this
Agreement, or its rights hereunder, prior to the Closing, to an affiliate or
wholly-owned subsidiary of MIRACLE.
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14.5 Legal Representation
STOCKHOLDERS have been afforded an opportunity to be
represented by their own legal counsel and have elected to proceed to execute
this Agreement and all related agreements. Xxxxxxx & Xxxxxxxx, Ltd. have
represented K-9 and Sellers in this transaction.
14.6 Knowledge of SELLERS
For purposes of this Agreement, the phrases "to the knowledge
of" or "to the best knowledge of" or words of similar imports as they relate
BUYER, means the actual knowledge of the XXXXX.
14.7 Law Governing.
This Agreement is being executed and delivered and is intended
to be performed in New York and shall be construed and enforced in accordance
with, and governed by, the laws and decisions of such State.
14.8 Counterparts.
This Agreement may be executed simultaneously in one or more
counterparts thereof, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
14.9 Severability.
If any provision of this Agreement is construed to be
prohibited or unenforceable, then the remaining provisions hereof shall not be
affected thereby and shall be enforced with out regard thereto.
14.10 Section Headings.
Section and subsection headings in this Agreement are for
convenience of reference only, do not constitute a part of this Agreement, and
shall not affect its interpretation.
14.11 References.
All words used in this Agreement shall be construed to be of
such number and gender as the context requires or permits. Unless a particular
context clearly provides otherwise, the words "hereof" and "hereunder" and
similar references refer to this Agreement in its entirety and not to any
specific Section or Subsection.
14.12 Consent to Jurisdiction.
MIRACLE and SELLERS hereby submits to the exclusive
jurisdiction of the courts of the State of New York and/or the Federal courts of
the United States of America located in the Southern District of New York in
respect of the interpretation and enforcement of the provisions of this
Agreement, or any document or instrument delivered pursuant hereto and hereby
waives, and agrees not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement of this Agreement or any document or
instrument delivered pursuant hereto, that he or it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that this Agreement or any document or instrument delivered
pursuant hereto may not be enforced in or by said courts that the action, suit
or proceeding is brought in an inconvenient forum, or that the venue of the
action, suit or proceeding is improper.
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SELLERS and MIRACLE agree that final judgment (with all rights
of appeal having been expired or waived) against them in any such action, suit
or proceeding shall be conclusive and that MIRACLE or the SELLERS are, as the
case may be, entitled to enforce such judgment in any other jurisdiction by suit
on the judgment, a certified or exemplified copy of which shall be conclusive
evidence of the fact and amount of indebtedness arising from such judgment.
14.13 No Third Party Beneficiaries: Closing Adjustment
(a) Except as specifically provided in Section 14.4 hereof, no
provision of this Agreement is intended to or shall be construed to grant or
confer any right to enforce this Agreement or any remedy for breach of this
Agreement to or upon any third party.
(b) To the extent of an increase in the amount of accrued
liabilities for the period from the last financial statement of CORPORATION
through the Closing Date (the "Period") any such increase shall be reimbursed to
BUYER by SELLERS jointly and severally on a pro-rata basis.
The Remainder of this Page Intentionally Left Blank
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14.14 Each Seller agrees that by executing the Agreement, it hereby
releases the CORPORATION and the BUYER and its respective successors and assigns
from all actions, suits, debts, claims, and demands whether in law or equity
which the SELLER ever had, or may hereafter have against the CORPORATION or the
BUYER existing on or prior to the date hereof; provided that nothing contained
herein shall constitute a release of BUYER from any and all of their obligations
under this Agreement.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be executed in the name and on behalf of each of them by one of their
respective officers, thereunto duly authorized, this _______ day of July 2000.
MIRACLE ENTERTAINMENT, INC. F/K/A
1ST MIRACLE GROUP, INC. (NY)
By: ___________________________
K-9 PROTECTION , INC.
By: ___________________________
SELLERS' REPRESENTATIVE
SELLERS: __________________________
Consented to
1ST MIRACLE GROUP, INC.
By: _________________________
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LISTING OF EXHIBITS/SCHEDULES
EXHIBIT I: Sellers Ownership of Shares in K-9 Protection, Inc.
EXHIBIT II: Officer Certificates - K-9 Protection
Schedule 4.5: Financial Statements of K-9 Protection, Inc.
Schedule 4.21: Intellectual Property
Schedule 8.1: K-9 Protection, Inc. Officers and Directors Resignations
