STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
by and among
ASTURIAS INDUSTRIES, INC.
a Florida Corporation
and
XXXXXXXXXXXX.XXX, INC.
a Florida Corporation
effective as of May 8, 2002
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 8th day of May, 2002, by and among Asturias Industries, Inc., a Florida
corporation with its principal place of business located at 00000 Xxxxxxxx
Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 ("Asturias"); XxxxXxxXxxxx.xxx, Inc., a
Florida Corporation with its principal place of business at 0000 XX 00xx Xxxxxx,
#000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("FishTheWorld") and the shareholders of
FishtheWorld ("Shareholders") as set forth on Exhibit A attached hereto
(collectively FishTheWorld and the shareholders of FishTheWorld shall be known
as the "FishTheWorld Group").
Premises
A. This Agreement provides for the acquisition of FishTheWorld whereby
FishTheWorld shall become a wholly owned subsidiary of Asturias and in
connection therewith, the issuance of a total of 9,000,000 shares of Asturias to
the FishTheWorld shareholders.
B. The and boards of directors of FishTheWorld and Asturias 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
ASTURIAS INDUSTRIES, INC.
As an inducement to and to obtain the reliance of FishTheWorld, Asturias
represents and warrants as follows:
Section 1.1 Organization. Asturias is a corporation duly organized, validly
existing, and in good standing under the laws of Florida 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 Asturias's articles of incorporation or bylaws. Asturias 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.
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Section 1.2 Capitalization. The authorized capitalization of Asturias
consists of 10,000,000 Common Shares, $0.001 par value per share, and no
Preferred Shares. As of the date hereof, Asturias has 1,000,000 common shares
issued and outstanding. Asturias is presently a 1934 Exchange Act reporting
company and has filed all necessary reports, quarterly, annual and special with
the Securities and Exchange Commission of the United States on a timely basis.
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. Asturias has no securities, warrants or options authorized or
issued.
Section 1.3 Subsidiaries. Asturias has no subsidiaries.
Section 1.4 Tax Matters: Books and Records.
(a) The books and records, financial and others, of Asturias are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) Asturias has no liabilities with respect to the payment of any
country, federal, state, county, or local taxes (including any
deficiencies, interest or penalties).
(c) Asturias shall remain responsible for all debts incurred by Asturias
prior to the date of closing.
Section 1.5 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or threatened by or against or affecting
Asturias 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 Asturias. Asturias 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. Asturias 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 Asturias, and there is no event of default in any
material respect under any such contract, agreement, lease or other commitment
in respect of which Asturias has not taken adequate steps to prevent such a
default from occurring.
Section 1.7 Information. The information concerning Asturias 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. Asturias's
filings with the SEC are complete and accurate in all material respects and do
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. Asturias 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
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or encumbrances. Asturias 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
Asturias's business. No third party has any right to, and Asturias 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 Asturias or any material portion
of its properties, assets or rights.
Section 1.9 Contracts On the closing date:
(a) There are no material contracts, agreements franchises, license
agreements, or other commitments to which Asturias is a party or by
which it or any of its properties are bound:
(b) Asturias 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 Asturias can now
foresee) materially and adversely affect , the business, operations,
properties, assets or conditions of Asturias; and
(c) Asturias 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.
Section 1.10 Compliance With Laws and Regulations. To the best of
Asturias's knowledge and belief, Asturias 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
Asturias or would not result in Asturias incurring material liability.
Section 1.11 Insurance. All of the insurable properties of Asturias are
insured for Asturias '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 Asturias 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 Asturias 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 Asturias and which is to be
performed in whole or in part after the date hereof. Asturias has no
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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 Asturias is a
party or to which any of its properties or operations are subject.
Section 1.15 Governmental Authorizations. Asturias 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
Asturias of this Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF XXXXXXXXXXXX.XXX, INC.
As an inducement to, and to obtain the reliance of Asturias, FishTheWorld
represents and warrants as follows:
Section 2.1 Organization. FishTheWorld is a corporation duly organized,
validly existing and in good standing under the laws of Florida 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 FishTheWorld's certificate of incorporation or bylaws.
FishTheWorld 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 FishTheWorld
consists of 1,000,000 shares, $0.0001 par value and no preferred shares. As of
the date hereof, there are 1,000,000 shares issued and 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. FishTheWorld has no other securities, warrants or options
authorized or issued.
Section 2.3 Subsidiaries. FishTheWorld has no subsidiaries.
Section 2.4 Tax Matters; Books & Records
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(a) The books and records, financial and others, of FishTheWorld are in
all material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) FishTheWorld has no liabilities with respect to the payment of any
country, federal, state, county, local or other taxes (including any
deficiencies, interest or penalties).
(c) FishTheWorld shall remain responsible for all debts incurred prior to
the closing.
Section 2.5 Information. The information concerning FishTheWorld 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. FishTheWorld 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, FishTheWorld 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 FishTheWorld's business. Except as set
forth in the attached Schedules, no third party has any right to, and
FishTheWorld 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 FishTheWorld 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 FishTheWorld, 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 FishTheWorld. FishTheWorld does not
have any knowledge of any default on its part with respect to any judgement,
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 FishTheWorld is a party or
by which it or any of its properties are bound;
(b) FishTheWorld 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
FishTheWorld can now foresee) materially and adversely affect, the
business, operations, properties, assets or conditions of
FishTheWorld; and
6
(c) FishTheWorld 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.
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 FishTheWorld
is a party or to which any of its properties or operations are subject.
Section 2.10 Material Contract Defaults. To the best of FishTheWorld'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
FishTheWorld, and there is no event of default in any material respect under any
such contract, agreement, lease or other commitment in respect of which
FishTheWorld has not taken adequate steps to prevent such a default from
occurring.
Section 2.11 Governmental Authorizations. To the best of FishTheWorld's
knowledge, FishTheWorld 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 FishTheWorld of the transactions
contemplated hereby.
Section 2.12 Compliance With Laws and Regulations. To the best of
FishTheWorld's knowledge and belief, FishTheWorld 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 FishTheWorld or would not result in FishTheWorld 's incurring any
material liability.
Section 2.13 Insurance. All of the insurable properties of FishTheWorld are
insured for FishTheWorld'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 FishTheWorld 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
FishTheWorld and any person
7
who was at the time of such contract, agreement or arrangement an officer,
director or person owning of record, or known by FishTheWorld to own
beneficially, ten percent (10%) or more of the issued and outstanding Common
Shares of FishTheWorld and which is to be performed in whole or in part after
the date hereof except with regard to an agreement with the FishTheWorld
shareholders providing for the distribution of cash to provide for payment of
federal and state taxes on Subchapter S income. FishTheWorld 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.
Section 2.16 Filings. FishTheWorld covenants that it will assist Asturias
in the preparation of all filings required by the Securities Exchange Act in a
timely manner, including but not limited to, the filing of a Form 8K within
fifteen (15) days after the execution of this Agreement and the delivery of the
audited financial statements for FishTheWorld in sufficient time to allow for
the filing of an amended 8K with the audited financial statements within sixty
(60) days thereafter.
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
Section 3.1 Share Exchange/Delivery of FishTheWorld Securities. On the
Closing Date, the holders of all of the FishTheWorld Common Shares shall deliver
to Asturias (i) certificates or other documents evidencing all of the issued and
outstanding FishTheWorld Common Shares, duly endorsed in blank or with executed
power attached thereto in transferrable form. On the Closing Date, all
previously issued and outstanding Common Shares of FishTheWorld shall be
transferred to Asturias, so that FishTheWorld shall become a wholly owned
subsidiary of Asturias.
Section 3.2 Issuance of Asturias Common Shares. In exchange for all of the
FishTheWorld Common Shares tendered pursuant to Section 3.1, Asturias shall
issue to the FishTheWorld shareholders a total of 9,000,000 Asturias common
shares which are restricted in accordance with Rule 144 of the 1933 Securities
Act. The 9,000,000 common shares shall be transferred to the FishTheWorld
shareholders in the following manner:
Xxx Xxxxxxxx-8,871,000 shares;
Xxxx Xxxxxxx-15,000 shares; and
Xxxxx Xxxxxxx-15,000 shares.
Xxxxxxx Xxx Xxxxx 5,000 Shares
Xxxxx X. Dukuchitz III 5,000 Shares
Xxxxxx X Xxxxx 5,000 Shares
Xxxxx Xxxxxx 5,000 Shares
Xxxxxxx X Xxxxxxxx 5,000 Shares
Xxxx Xxxxxxxxx Xxxxxxxx 5,000 Shares
Xxxxx Xxxxxxxxx Xxxxxxxx 5,000 Shares
Xxxxxxx Xxxxxxxx XX 5,000 Shares
Xxxxxxx Xxxxxxxx III 5,000 Shares
Xxxxxxx Xxxxxxxx XX 10,000 Shares
Xxxxxx X Xxxxxxxx 5,000 Shares
Xxxxxxx X. Xxxxxx 5,000 Shares
Xxxxxxx X Xxxxxxx/ Xxxxxx X Xxxxxx 5,000 Shares
Xxxxxx & Jaclin,LLP-25,000 shares
Xxxx Xxxxxxxxxxx 1,000 shares
Xxxxxxx X. Xxxxxxx 1,000 shares
Xxxxx Strauss1,000 shares
Xxxxx Xxxxx 1,000 shares
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Section 3.3 Events Prior to Closing. Upon execution hereof or as soon
thereafter as practical, management of Asturias and FishTheWorld 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 on or about May 8, 2002 ("Closing
Date").
Section 3.5 Termination.
(a) This Agreement may be terminated by the board of directors or majority
interest of Shareholders of either Asturias or FishTheWorld,
respectively, at any time prior to the Closing Date if:
(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
judgement 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
(ii) any of the transactions contemplated hereby are disapproved by
any regulatory authority whose approval is required to consummate such
transactions.
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.
(b) This Agreement may be terminated at any time prior to the Closing Date
by action of the board of directors of Asturias if FishTheWorld 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 FishTheWorld 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 FishTheWorld. 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.
(c) This Agreement may be terminated at any time prior to the Closing Date
by action of the board of directors of FishTheWorld if Asturias shall
fail to comply in any material respect
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with any of its covenants or agreements contained in this Agreement or
if any of the representations or warranties of Asturias 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 Asturias. 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.
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 Asturias After Acquisition. After the Closing
Date, Xxxx Xxxxxxxx shall become the sole director of Asturias and Xxxxx
Xxxxxxxxx will resign as Director of Asturias. 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 Asturias . Upon the closing, the following persons
shall be elected as officers of Asturias in accordance with procedures set forth
in the Asturias bylaws:
NAME OFFICE
-------------------------------------------
Xxxx Xxxxxxxx Chief Executive Officer, President
Secretary and Treasurer
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Prior to closing, Asturias
and FishTheWorld 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. Asturias and FishTheWorld
shareholders holding "restricted securities, " as that term is defined in Rule
144 promulgated pursuant to the Securities Act will remain as "restricted
securities". Asturias is under no obligation to register such shares under the
Securities Act, or otherwise. The stockholders of Asturias and FishTheWorld
holding restricted securities of Asturias and FishTheWorld 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.
Section 4.3 Special Covenants and Representations Regarding the Asturias
Common Shares to be Issued in the Exchange. The consummation of this Agreement,
including the issuance of the Asturias Common Shares to the Shareholders of
FishTheWorld 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,
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upon the circumstances under which the FishTheWorld Shareholders acquire such
securities.
Section 4.4 Third Party Consents. Asturias and FishTheWorld 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, Asturias and
FishTheWorld 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,
Asturias will not, without the prior consent of FishTheWorld:
(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.
(a) Asturias hereby agrees to indemnify FishTheWorld, each of the
officers, agents and directors and current shareholders of
FishTheWorld 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
(b) FishTheWorld hereby agrees to indemnify Asturias, each of the
officers, agents, directors and current shareholders of Asturias 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
11
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.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF ASTURIAS
The obligations of Asturias 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 Asturias 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 Asturias shall have performed or compiled with all
covenants and conditions required by this Agreement to be performed or complied
with by Asturias prior to or at the Closing. FishTheWorld shall be furnished
with a certificate, signed by a duly authorized officer of Asturias and dated
the Closing Date, to the foregoing effect.
Section 5.2 Director Approval. The Board of Directors of Asturias shall
have approved this Agreement and the transactions contemplated herein.
Section 5.3 Officer's Certificate. FishTheWorld shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
officer of Asturias to the effect that: (a) the representations and warranties
of Asturias 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) Asturias 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 FishTheWorld, Asturias 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 Asturias, 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 Asturias Schedules, by
or against Asturias which might result in any material adverse change in any of
the assets, properties, business or operations of Asturias.
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 Asturias.
Section 5.5 Other Items. FishTheWorld shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as FishTheWorld may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF FISHTHEWORLD
The obligations of FishTheWorld under this Agreement are subject to the
satisfaction, at or before the Closing date (unless otherwise indicated herein),
of the following conditions:
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Section 6.1 Accuracy of Representations. The representations and warranties
made by FishTheWorld 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 FishTheWorld shall have performed and
complied with all covenants and conditions required by this Agreement to be
performed or complied with by FishTheWorld prior to or at the Closing. Asturias
shall have been furnished with a certificate, signed by a duly authorized
executive officer of FishTheWorld and dated the Closing Date, to the foregoing
effect.
Section 6.2 Director Approval. The Board of Directors of FishTheWorld shall
have approved this Agreement and the transactions contemplated herein.
Section 6.3 Officer's Certificate. Asturias shall be furnished with a
certificate dated the Closing date and signed by a duly authorized officer of
FishTheWorld to the effect that: (a) the representations and warranties of
FishTheWorld 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) FishTheWorld 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 FishTheWorld.
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 Florida, United
States of America.
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 Asturias : Xxxxxx & Xxxxxx, LLP
0000 Xxxxx 0, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
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If to FishTheWorld:
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
Asturias and FishTheWorld 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.
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
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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.
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.
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Section 7.21 Conflict of Interest. Both FishtheWorld and Asturias
understand that Xxxxxx & Jaclin, LLP is representing both parties in this
transaction which represents a conflict of interest Both FishtheWorld and
Asturias have the right to different counsel due to this conflict of interest.
Notwithstanding the above, both FishtheWorld and Asturias agrees to waive this
conflict and have Xxxxxx & Xxxxxx, LLP represent both parties in the
above-referenced transaction. Both FishtheWorld and Asturias agree to hold this
law firm harmless from any and all liabilities that may occur or arise due to
this conflict.
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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: ASTURIAS INDUSTRIES, INC.
/s/ Xxxxx Xxxxxxxxx By: Xxxxx Xxxxxxxxx
---------------------------- -------------------------------
ATTEST: XXXXXXXXXXXX.XXX, INC.
/s/ Xxx Xxxx Xxxxxxxx By: Xxx Xxxxxxxx
---------------------------- --------------------------------
XXXXXXXXXXXX.XXX, INC. SHAREHOLDERS
---------------------------- --------------------------------
---------------------------- --------------------------------
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