ANNULMENT AND AMENDING AGREEMENT
THIS ANNULMENT AND AMENDING AGREEMENT (the "Amending Agreement")
is made and entered into as of the 31st day of December, 2003, by
and between the following:
XXXXX X. XXXXXXX, XX., an individual, ( the "Seller") and
PARAMCO FINANCIAL GROUP, INC., a Delaware corporation,
("Paramco").
WITNESSETH
WHEREAS, the parties hereto entered into that certain Purchase
Agreement, dated as of July 17, 2003 (the "Purchase Agreement"),
subject to the terms and conditions of which Paramco and Seller
desired for Paramco to purchase from Seller and for Seller to
sell to Paramco all of the outstanding common stock of ALLIANCE
CAPITAL GROUP, INC., a Delaware corporation;
WHEREAS, in Section 4.4(b) of the Purchase Agreement, Seller
represented and warranted to Paramco that:
Alliance Capital Group's Financial Statements are capable of
being examined and reported upon with an unqualified opinion
expressed by an independent public or certified public
accountant and will comply with the requirements and
standards set
forth in Regulation S-X, as promulgated and adopted by the
Securities and Exchange Commission.
WHEREAS, in reliance on such representation and warranty, the
parties closed the transactions contemplated by the Purchase
Agreement on July 25, 2003 (the "July Closing");
WHEREAS, as of the date hereof an audit of such financial
statements (the "Financial Statements") has not been completed by
Paramco's independent accountant, who has stated that such audit
will not be completed until after the first quarter of 2004;
WHEREAS, Paramco and Seller deem it desirable and in the best
interests of Paramco that the July Closing be annulled and that
the Purchase Agreement be amended to provide for a closing date
not later than September 30, 2004, subject to completion of the
audit of the Financial Statements; and
WHEREAS, Seller and the Board of Directors of Paramco have
approved and adopted thisAmending Agreement, subject to the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto do
hereby agree as follows:
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SECTION 1
DEFINITIONS
1.1 "Amending Agreement", "Seller", "Paramco", "Purchase
Agreement", "Financial Statements", and "July Closing",
respectively, shall have the meanings defined in the foregoing
preamble and recitals to this Amending Agreement.
1.2 All defined terms not otherwise defined herein shall have
the meanings ascribed to them in the Purchase Agreement.
SECTION 2
AGREEMENT FOR ANNULMENT OF CLOSING AND AMENDMENT OF CLOSING DATE
2.1 Annulment of Closing.
Effective as of the date of this Amending Agreement, the July
Closing is hereby annulled and, in accordance therewith, (a)
Seller hereby tender to Paramco certificate representing 120,000
shares of Paramco's Common Stock, bearing the restrictive legend
144 in a form enabling Paramco, then and there, to cancel said
shares, and (b) Paramco hereby tenders to Seller Alliance
certificate, representing all of the issued and outstanding
capital stock (100,000 shares of common stock) of Alliance, in a
form enabling Seller, then and there, to become the record and
beneficial owner of said common stock.
2.2 Amendment of Closing Date.
The date referenced in the definition of "Closing Date" in the
Purchase Agreement is hereby changed, such that the definition of
"Closing Date" shall be amended in full to read as follows:
"Closing Date" shall mean 10:00 a.m., local time, September
30, 2004, at Denver, Colorado, the date on which the parties
hereto shall close the transaction contemplated herein;
provided that the parties can change the Closing Date and
place of Closing to such other time and place as the parties
shall mutually agree, in writing. As of the Closing Date,
all Exhibits to this Agreement shall be complete and
attached to this Agreement.
2.3 Addition of Section 8.3.
The following Section 8.3 shall be added to the Purchase
Agreement:
8.3 Audit of Financial Statements. The audit of the
Financial Statements by Paramco's independent accountant shall be
complete and delivered to Paramco no later than the Closing Date.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF PARAMCO
Paramco, in order to induce Seller to execute this Amending
Agreement and to consummate the transaction contemplated herein,
represents and warrants to Seller, as follows:
3.1 Authorization and Validity. Paramco has the requisite power
and is duly authorized to execute and deliver and to carry out
the terms of this Amending Agreement. The board of directors and
stockholders of Paramco have taken all action required by law,
its Articles of Incorporation and Bylaws, both as amended, or
otherwise to authorize the execution and delivery of this
Amending Agreement and the consummation of the transactions
contemplated hereby. Assuming this Amending Agreement has been
approved by all action necessary on the part of Seller, this
Amending Agreement is a valid and binding agreement of Paramco.
3.2 No Defaults. Neither the execution and delivery of this
Amending Agreement, nor the consummation of the transactions
contemplated herein, will conflict with or result in a breach of
or constitute a default under any of the foregoing or result in
the creation of any lien, mortgage, pledge, charge, or
encumbrance upon any asset of Paramco and no consents or waivers
thereunder are required to be obtained in connection therewith in
order to consummate the transactions contemplated by this
Amending Agreement.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF SELLERS
Seller, in order to induce Paramco to execute this Amending
Agreement and to consummate the transaction contemplated herein,
represents and warrants to Paramco as follows:
4.1 Authorization and Validity. Seller has the requisite power
and is duly authorized to execute and deliver and to carry out
the terms of this Amending Agreement. Assuming this Amending
Agreement has been approved by all action necessary on the part
of Paramco, this Amending Agreement is a valid and binding
agreement of Seller.
4.2 Status of Alliance Capital Group. From and after the July
Closing through and including the date hereof Seller has been
fully responsible for the management, directions, operations, and
planning in respect of Alliance, and Seller acknowledges that
Paramco has not made any representation or warranty as to the
status of Alliance as of the date hereof or any change to such
status during the period from and after the July closing through
and including the date hereof.
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4.3 No Defaults. Neither the execution and delivery of this
Amending Agreement, nor the consummation of the transactions
contemplated herein, will conflict with or result in a breach of
or constitute a default under any of the foregoing or result in
the creation of any lien, mortgage, pledge, charge, or
encumbrance upon any asset of Alliance and no consents or waivers
thereunder are required to be obtained in connection therewith in
order to consummate the transaction contemplated by this Amending
Agreement.
SECTION 5
PRESS RELEASE
5.1 Press Release. Seller acknowledges that Paramco may issue
its press release in respect of the transactions contemplated by
this Amending Agreement, and shall promptly file a Current Report
on Form 8-K in respect thereof, copies of each which documents
shall be provided to Sellers within two business days of their
issuance and filing, respectively.
SECTION 6
NATURE AND SURVIVAL OF REPRESENTATIONS, ETC.
6.1 All statements contained in any certificate or other
instrument delivered by or on behalf of Paramco or Seller
pursuant to this Amending Agreement or in connection with the
transactions contemplated hereby shall be deemed representations
and warranties by such party. All representations and warranties
and agreements made by Paramco or Seller in this Amending
Agreement or pursuant hereto shall survive the date hereof until
the Closing Date of September 30, 2004.
SECTION 7
MISCELLANEOUS
7.1 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if written and
delivered in person or sent by registered mail, postage prepaid,
addressed as follows:
To Seller: Xxxxx X. Xxxxxxx, Xx.
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
To Paramco: Paramco Financial Group, Inc.
Attn: Xxxxxxx X. Xxxxx
0000 Xx. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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copy to: Xxxxx Xxxx LLP
(which shall not Attn: Xxxxxxx X. Xxxx, Esq.
constitute notice) 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
or such other addresses as shall be furnished in writing by the
appropriate person, and any such notice or communication shall be
deemed to have been given as of the date so mailed.
7.2 Time of the Essence. Time shall be of the essence of this
Amending Agreement.
7.3 Costs. Each party will bear the costs and expenses incurred
by it in connection with this Amending Agreement and the
transactions contemplated hereby.
7.4 Entire Agreement. This Amending Agreement and the documents
delivered concurrently herewith contain the entire agreement
between the parties hereto with respect to the transactions
contemplated this Amending Agreement and supersede all other
agreements, written or oral, with respect thereto. This Amending
Agreement may be amended or modified in whole or in part, and any
rights hereunder may be waived, only by an agreement in writing,
duly and validly executed in the same manner as this Amending
Agreement or by the party against whom the waiver would be
asserted. The waiver of any right hereunder shall be effective
only with respect to the matter specifically waived and shall not
act as a continuing waiver unless it so states by its terms.
7.5 Counterparts. This Amending Agreement may be executed in one
or more counterparts each of which shall be deemed to constitute
an original and shall become effective when one or more
counterparts have been signed by each party hereto and delivered
to the other party.
7.6 Governing Law. This Amending Agreement shall be governed by,
and construed and interpreted in accordance with, the laws of the
State of Colorado.
7.7 Attorneys' Fees and Costs. In the event any party to this
Amending Agreement shall be required to initiate legal
proceedings to enforce performance of any term or condition of
this Amending Agreement, including, but not limited to, the
interpretation of any term or provision hereof the payment of
moneys or the enjoining of any action prohibited hereunder, the
prevailing party shall be entitled to recover such sums, in
addition to any other damages or compensation received, as will
reimburse the prevailing party for reasonable attorneys' fees and
court costs incurred on account thereof (including, without
limitation, the costs of any appeal) notwithstanding the nature
of the claim or cause of action asserted by the prevailing party.
7.8 Successors and Assigns. This Amending Agreement shall inure
to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, personal representatives,
successors, and assigns, as the case may be.
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7.9 Access to Counsel. Each party hereto acknowledges that each
has had access to legal counsel of her or its own choice and has
obtained such advice therefrom, if any, as such party has deemed
necessary and sufficient prior to the execution hereof Each party
hereto acknowledges that the drafting of this Amending Agreement
has been a joint effort and any ambiguities or interpretative
issues that may arise from and after the execution hereof shall
not be decided in favor or, or against, any party hereto because
the language reflecting any such ambiguities or issues may have
been drafted by any specific party or his or its counsel.
7.10 Captions. The captions appearing in this Amending
Agreement are inserted for convenience of reference only and
shall not affect the interpretation of this Amending Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PARAMCO FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Xxxxxxx X. Xxxxx
Chairman of the Board and Chief
Executive Officer
SELLER
By: /s/ Xxxxx X. Xxxxxxx, Xx.
--------------------------
Xxxxx X. Xxxxxxx, Xx.
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