AGREEMENT OF SALE
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AGREEMENT OF SALE, made as of July 3, 2001, between Xxxxxx Xxxxxx, having an
address at 000 Xxxxx Xxxxxx, Xxx 000, Xxxxx, Xxx Xxxx ("Seller"), and Universal
Media Holdings, Inc., a Delaware corporation, having an address at 000 Xxxxx
Xxxxxx, Xxxxx, Xxx Xxxxxx ("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, 51% of
certain assets of the business known as Del-Pais International, Inc. hereinafter
specified, 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, 51% of the certain assets and obligations (other than cash, certificates
of deposit, securities, and cash equivalents) of the business known as Del-Pais
International, Inc. (the "Assets"), including without limitation the following:
(a) the accounts receivable of the business outstanding on the closing date
(the "Accounts Receivable");
(b) the contracts and agreement described in Exhibit A-1 hereto (the
"Contracts");
(c) the business known as Del-Pais International, Inc., and the books and
records thereof (the "Business");
(d) all right, title and interest of Seller in the name Del-Pais
International, Inc. and any variants thereof (the "Name"); and
(e) the goodwill of the business (the "Goodwill").
2. Purchase Price. The purchase price to be paid by Purchaser for the 51% of the
assets, is as follows:
(a) The issuance of shares of Common Stock of the Purchaser worth FOUR
HUNDRED AND FIFTY THOUSAND SHARES ($450,000) valued as of the date of closing
(the "Purchaser Shares"), to be valued after the corporate reorganization of the
Purchaser. The Purchaser Shares shall be fully paid and non-assessable and shall
bear a restrictive legend upon the certificate and be subject to the
requirements of Rule 144. Purchase shall issue the shares as follows;
(i) On the quarterly anniversary of the closing of this
transaction, the Purchaser shall register, via a Registration Statement
shares equal to one- fourth the total purchase price for 51% of the
Assets. Each quarter's Registration Statement shall contain enough
shares to equal the one-quarter of the total purchase price, with the
final quarter to be increased to equal any shortfall in the value of
the previous three quatrters.
(b) Assumption of 51% of the obligation currently paid by Seller for the
purchase of the rights to sell the product of Del-Pais International, Inc; and
(c) The payment of working capital from the Purchaser and the Seller of ONE
HUNDRED THOUSAND DOLLARS ($100,000) each to be used by the Purchaser for
operations. The Seller shall also put in ONE HUNDRED THOUSAND DOLALRS ($100,000)
for working capital of the Company.
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 the Purchaser, at 10 A.M. on July 3, 2001 (the "closing date").
4. Closing Documents. At the closing Seller shall execute and deliver to
Purchaser:
(a) a Xxxx of Sale substantially in the form of Exhibit C hereto
(b) such other instruments as may be necessary or proper to transfer to
Purchaser all other ownership interests in the Assets to be transferred under
this agreement
At the closing Purchaser shall execute and deliver to Seller:
(a) an Assumption of the Existing Indebtedness in form and substance
satisfactory to Seller's attorney
5. Waiver Of Bulk Transfer Requirements. The parties waive compliance with the
bulk transfer provisions of the Uniform Commercial Code, which may be applicable
to this transaction. Seller agrees to indemnify Purchaser against all claims
made by the creditors of Seller, other than the Existing Indebtedness to which
this sale is subject.
6. Use Of Purchase Price To Pay Encumbrances. If there is any lien or
encumbrance against the Assets, or anything else affecting this sale, which
Seller is obligated to pay and discharge at the closing, Seller may use any
portion of the balance of the purchase price to discharge it, or Seller may
allow to Purchaser the amount thereof as a credit at the closing. Purchaser
agrees to provide separate certified checks as reasonably requested to assist in
clearing up these matters.
7. Representations And Warranties Of Seller. Seller represents and warrants to
Purchaser as follows:
(a) Seller has full power and authority to conduct his business as now
carried on, and to carry out and perform his undertakings and obligations as
provided herein.
(b) No action, approval, consent or authorization of any governmental
authority is necessary for Seller to consummate the transactions contemplated
hereby.
(c) Seller is the owner of and has good and marketable title to the Assets,
free of all liens, claims and encumbrances, except as set forth herein.
(d) There are no violations of any law or governmental rule or regulation
pending against Seller or the Assets.
(e) There are no judgments, liens, suits, actions or proceedings pending
against Seller or the Assets.
(f) Seller has not entered into, and the Assets are 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 Assets.
(g) At the time of the closing, there will be no creditors of Seller, other
than the holders of the Existing Indebtedness.
(h) The Contracts are in full force and effect and without any default by
Seller thereunder. All copies of the Contracts provided by Seller to Purchaser
are true and complete copies of the original Contracts. Seller is not indebted
under any executory Contracts, except as may be set forth in Exhibit A-1 hereto.
8. 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, and is duly qualified to do business in New York.
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 provision of the Certificate of Incorporation or
Bylaws of Purchaser.
(b) No action, approval, consent or authorization of any governmental
authority is necessary for Purchaser to consummate the transactions contemplated
hereby.
9. No Other Representations. Purchaser acknowledges that neither Seller nor any
representative or agent of Seller has made any representation or warranty
(expressed or implied) regarding the Assets or the business, or any matter or
thing affecting or relating to this agreement, except as specifically set forth
in this agreement. Seller shall not be liable or bound in any manner by any oral
or written statement, representation, warranty, agreement or information
pertaining to the Assets or the business or this agreement furnished by any
broker, agent or other person, unless specifically set forth in this agreement.
Purchaser has inspected the Assets, Purchaser agrees to take the Assets "as is"
and in their present condition, subject to reasonable use, wear, tear and
deterioration between now and the closing date.
10. Conduct Of The Business. Seller, until the closing, shall:
(a) conduct the business in the normal, useful and regular manner;
(b) use his best efforts to 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 Seller's premises and the books and records of the business, and
furnish to Purchaser such data and information pertaining to Seller's business
as Purchaser from time to time reasonably may request.
Unless and until the closing shall take place, Purchaser shall hold in
confidence all information obtained in connection with this agreement, and, if
for any reason the closing shall not take place, Purchaser shall return to
Seller all documents received hereunder.
11. Expenses Before And After The Closing. Except as otherwise provided in this
agreement, Seller shall be liable for the payment of all bills for merchandise,
goods and inventory delivered to the business before the closing; and Purchaser
shall be 51% liable for the payment of all bills for merchandise, goods and
inventory delivered to the business after the date of the closing.
Seller shall be liable for the payment of all salaries, payroll deductions and
taxes levied upon the employer in connection with the employee's work performed
before the closing. Purchaser shall be responsible for 51% of the payment of all
salaries, payroll deductions and taxes levied upon the employer in connection
with the employee's work performed after the closing.
12. Conditions To Closing. The obligations of the parties to close hereunder are
subject to the following conditions:
(a) All of the terms, covenants and conditions to be complied with or
performed by the other party 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 the other party 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 Assets, except as provided for herein.
If Purchaser shall be entitled to decline to close the transactions contemplated
by this agreement, but Purchaser nevertheless shall elect to close, Purchaser
shall be deemed to have waived all claims of any nature arising from the failure
of Seller to comply with the conditions or other provisions of this agreement of
which Purchaser shall have actual knowledge at the closing.
13. Risk Of Loss. The risk of loss to the assets of the business sold hereunder,
until the closing, is assumed and shall be borne by Seller.
14. Employment During Transition Period. In order to provide for an orderly
transfer of the operations of the business, Seller shall be employed by
Purchaser for a period of Two years following the closing for the following
compensation: Fifty Thousand Dollars per year.
15. 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. Each of the parties shall indemnify and hold the other harmless from and
against all liability, claim, loss, damage or expense, including reasonable
attorneys' fees, pertaining to any broker, finder or other person with whom such
party has dealt.
16. 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.
17. Survival. The representations, warranties and covenant contained herein
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.
18. 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.
19. Entire Agreement. This agreement contains all of the terms agreed upon
between Seller and Purchaser with respect to the subject matter hereof. This
agreement has been entered into after full investigation. All prior oral or
written statements, representations, promises, understandings and agreements of
Seller and Purchaser are merged into and superseded by this agreement, which
alone fully and completely expresses their agreement.
20. 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.
21. 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.
22. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York. If any provisions of this
agreement shall be unenforceable or invalid, such unenforceability or invalidity
shall not affect the remaining provisions of this agreement.
23. Binding Effect. This agreement shall not be considered an offer or an
acceptance of an offer by Seller, and shall not be binding upon Seller until
executed and delivered by both Seller and Purchaser. Upon such execution and
delivery, this agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
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Xxxxxx Xxxxxx
UNIVERSAL MEDIA HOLDINGS, INC.
By __________________________________
Xxxxxxx Xxxxxxxxx, President
EXHIBIT A-1
Contracts
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EXHIBIT B
Existing Indebtedness
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EXHIBIT C
XXXX OF SALE
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KNOW THAT, for valuable consideration, Xxxxxx Xxxxxx, having
an address at 000 Xxxxx Xxxxxx, Xxx 000, Xxxxx, Xxx Xxxx ("Seller"), does hereby
grant, sell, transfer and assign unto Universal Media Holdings, Inc., a Delaware
corporation, having an address at 000 Xxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx
("Purchaser"), 51% of all right, title and interest of Seller in and to the
assets of the business known as Del-Pais International, Inc., more particularly
described in Exhibit A attached hereto and made a part hereof,
TO HAVE AND TO HOLD the same unto Purchaser and the heirs,
executors, administrators, successors and assigns of Purchaser forever.
IN WITNESS WHEREOF, Seller has duly executed this Xxxx of Sale
as of July 3, 2001.
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Xxxxxx Xxxxxx
