Exhibit (10)(vi)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of February __, 2000, by and among
Area Development and Investment Company, a Utah corporation (the "Company")
(whose name is to be changed to Maxx International, Inc.), and each of the other
parties on the signature page of this Agreement (the "Sellers").
WITNESSETH:
WHEREAS, the Sellers own 100% of the shares of common stock of Pure Vision
Internet, Inc., a California corporation ("Pure Vision") in the denominations as
set forth opposite their respective names on Schedule I to this Agreement which
shares constitute all of the issued and outstanding shares of capital stock of
Pure Vision (the "Pure Vision Shares"); and
WHEREAS, the Company desires to acquire from the Sellers, and the Sellers
desire to sell to the Company, all of the Pure Vision Shares in exchange for the
issuance by the Company of an aggregate of 3,513,488 (post 2-for-1 forward
split) shares (the "Company Shares") of the Company's common stock, par value
$.01 per share (the "Company Common Stock") which shall on the date of issuance
constitute an equity position of not less than fourteen percent (14%) of the
total number of common shares of the Company issued and outstanding shares prior
to issuance of the Company Shares. Seller shall also receive options to purchase
One Million Fifty Thousand (1,050,000) (post 2-for-1 forward split) shares of
common stock at the option prices set forth herein below and the payment of One
Hundred Thousand dollars ($100,000) designated for payment of debt owed to
Centralized Escrow Systems, Inc. by Pure Vision, on the terms and conditions set
forth below;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and agreements set forth herein, the parties hereto
agree as follows:
ARTICLE I
EXCHANGE OF SHARES
1.1 Exchange of Shares. Subject to the terms and conditions of this
Agreement, on the Closing Date (as hereinafter defined):
(a) the Company shall issue and deliver to each of the Sellers the number
of authorized but unissued shares of Company Common Stock set forth opposite
such Seller's name set forth on Schedule I hereto or the designees of Seller as
set forth therein, and
(b) each Seller agrees to deliver to the Company, the number of authorized
but unissued shares of Common Stock, no par value per share, of Pure Vision set
forth opposite such Seller's name on Schedule I hereto along with an
appropriately executed stock power endorsed in
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favor of the Company; and
(c) the Company shall at the time of closing deliver to Seller or Seller's
designees options to purchase a total of One Million Fifty Thousand (1,050,000)
shares of the common stock of the Company at the following prices:
Three hundred fifty thousand (350,000) shares at a price of five dollars
($5.00) per share;
Three hundred fifty thousand (350,000) shares at a price of ten dollars
($10.00) per share; and
Three hundred fifty thousand (350,000) shares at a price of fifteen dollars
($15.00) per share.
(d) the Company shall deliver to the Seller the sum of One Hundred Thousand
dollars ($100,000) for the sole purpose of paying debt owed to Centralized
Escrow Systems, Inc. by Pure Vision upon execution of all parties on Signature
page of this Agreement.
(e) the Company shall pay to Seller the sum of $100,000.00, beginning on
the 14th day of February, 2000 and continuing monthly thereafter until the 14th
day of February 2001. Said funds are to be used as operating expenses and
salaries as per Employment Agreements, a copy of which the Company has read,
received and approved, and, by execution of this Agreement, agrees. All parties
to this Agreement understand, represent and agree that said $100,000.00 per
month is for current working capital and operating expenses of Pure Vision. The
Parties hereto understand that to further expand Pure Vision business additional
capital may be needed.
1.2 Time and Place of Closing. The closing of the transactions contemplated
hereby (the "Closing") shall take place at the offices of the Company's counsel
on or before February 24, 2000 (the "Closing Date") at 10:00 A.M., New York
time, or at such other place or time as the Company and the Sellers may agree.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each of the Sellers that now and/or
as of the Closing:
2.1 Due Organization and Qualification; Subsidiaries; Due Authorization.
(a) The Company and each Subsidiary of the Company is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of formation, with full corporate power and authority to own, lease
and operate its respective business and proper ties and to carry on its
respective business in the places and in the manner as presently conducted or
proposed to be conducted. The Company and each Subsidiary is in good standing as
a foreign corporation in each jurisdiction in which the properties owned, leased
or operated, or the business conducted, by it requires such qualification except
for any such failure, which when taken together
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with all other failures, is not likely to have a material adverse effect on the
business of the Company and its Subsidiaries taken as a whole.
(b) The Company does not own, directly or indirectly, any capital stock,
equity or interest in any corporation, firm, partnership, joint venture or other
entity, other than those (each, a "Subsidiary" and together, the "Subsidiaries")
set forth in Item 2.1 of the Disclosure Schedule of even date herewith, which
accompanies this Agreement and is incorporated herein by reference (the
"Disclosure Schedule"). Except as set forth in Item 2.1 of the Disclosure
Schedule, each Subsidiary is wholly owned by the Company, all the outstanding
shares of capital stock of each Subsidiary are owned free and clear of all Liens
(as hereinafter defined), there is no contract, agreement, arrangement, option,
warrant, call, commitment or other right of any character obligating or
entitling any Subsidiary to issue, sell, redeem or repurchase any of its
securities, and there is no outstanding security of any kind convertible into or
exchangeable for securities of any Subsidiary, and except as set forth on
Schedule I attached hereto and made a part hereof by this reference.
(c) The Company has all requisite corporate power and authority to execute
and deliver this Agreement, and to consummate the transactions contemplated
hereby and thereby. The Company has taken all corporate action necessary for the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and this Agreement constitutes the valid and
binding obligation of the Company, enforceable against the Company in accordance
with its respective terms, except as may be affected by bankruptcy, insolvency,
moratoria or other similar laws affecting the enforcement of creditors' rights
generally and subject to the qualification that the availability of equitable
remedies is subject to the discretion of the court before which any proceeding
there for may be brought.
(d) Prior to the date of closing provided for herein, the Company shall
have completed its acquisition of all of the assets of Maxx International, Inc.
a Delaware corporation and the rights to the use of the Maxx International, Inc.
name.
2.2 No Conflicts or Defaults. The execution and delivery of this Agreement
by the Company and the consummation of the transactions contemplated hereby do
not and shall not (a) contravene the Certificate of Incorporation or By-laws of
the Company or (b) with or without the giving of notice or the passage of time
and subject to obtaining such consents prior to the Closing as are set forth in
Item 2.2 of the Disclosure Schedule, (i) violate, conflict with, or result in a
breach of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or license to which
the Company or any of the Subsidiaries is a party or by which the Company or any
of the Subsidiaries or any of their respective assets are bound, or any
judgment, order or decree, or any law, rule or regulation to which the Company
or any of the Subsidiaries or any of their respective assets are subject, (ii)
result in the creation of, or give any party the right to create, any lien,
charge, encumbrance or any other right or adverse interest ("Liens") upon any of
the assets of the Company or any of the Subsidiaries, (iii) terminate or give
any party the right to terminate, amend, abandon or refuse to perform, any
material agreement, arrangement or commitment to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries or
any of their respective assets are bound, or (iv) accelerate or modify, or give
any party the right to accelerate or modify, the time within which, or the terms
under which,
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the Company or any of the Subsidiaries is to perform any duties or obligations
or receive any rights or benefits under any material agreement, arrangement or
commitment to which it is a party.
2.3 Capitalization. All of the outstanding shares of Common Stock are, and
the Company Shares when issued in accordance with the terms hereof, will be,
duly authorized, validly issued, fully paid and non assessable, and have not
been or, with respect to the Company Shares, will not be issued in violation of
any preemptive right of stockholders. The Company Shares are not subject to any
preemptive or subscription right, any voting trust agreement or other contract,
agreement, arrangement, option, warrant, call, commitment or other right of any
character obligating or entitling the Company to issue, sell, redeem or
repurchase any of its securities, and there is no outstanding security of any
kind convertible into or exchangeable for Common Stock.
2.4 Financial Statements. Exhibit 1 to the Disclosure Schedule contains
copies of the consolidated balance sheets of the Company at September 30, 1999
and December 31, 1998, and the related statements of operations, stockholders'
equity and cash flows for the fiscal quarter and year then ended, including the
notes thereto, as reviewed by Sellers & Associates, certified public accountants
(all such statements being the "Company Financial Statements"). Except as set
forth in Item 2.4 of the Disclosure Schedule, the Financial Statements, together
with the notes thereto, have been prepared in accordance with U.S. generally
accepted accounting principles applied on a basis consistent throughout all
periods presented, subject to audit adjustments, which are not expected to be
material. Such statements present fairly the financial position of the Company
as of the dates and for the periods indicated. The books of account and other
financial records of the Company have been maintained in accordance with good
business practices.
2.5 Further Financial Matters. (a) Except as set forth in Item 2.5 of the
Disclosure Schedule, neither the Company nor any of the Subsidiaries has any
material liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or otherwise, which
are required to be reflected or reserved in a balance sheet or the notes thereto
under generally accepted accounting principles, but which are not reflected in
the Financial Statements.
2.6 Taxes. Except as indicated in Item 2.6 of the Disclosure Schedule, each
of the Company and the Subsidiaries has filed all United States federal, state,
county, local and foreign national, provincial and local returns and reports
which were required to be filed on or prior to the date hereof in respect of all
income, withholding, franchise, payroll, excise, property, sales, use,
value-added or other taxes or levies, imposts, duties, license and registration
fees, charges, assessments or withholdings of any nature whatsoever (together,
"Taxes"), and has paid all Taxes (and any related penalties, fines and interest)
which have become due pursuant to such returns or reports or pursuant to any
assessment which has become payable, or, to the extent its liability for any
Taxes (and any related penalties, fines and interest) has not been fully
discharged, the same have been properly reflected as a liability on the books
and records of the Company and adequate reserves there for have been
established. All such returns and reports filed on or prior to the date hereof
have been properly prepared and are true, correct (and to the extent such
returns reflect judgments made by the Company or a Subsidiary, as the case may
be, such judgments were reasonable under the circumstances) and complete in all
material respects. Except as indicated in 2.6 of the Disclosure
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Schedule, no extension for the filing of any such return or report is currently
in effect. Except as indicated in Item 2.6 of the Disclosure Schedule, no tax
return or tax return liability of the Company or any Subsidiary has been audited
or, presently under audit. All taxes and any penalties, fines and interest which
have been asserted to be payable as a result of any audits have been paid.
Except as indicated in Item 2.6 of the Disclosure Schedule, neither the Company
nor any Subsidiary has given or been requested to give waivers of any statute of
limitations relating to the payment of any Taxes (or any related penalties,
fines and interest). There are no claims pending or, to the knowledge of the
Company, threatened, against the Company or any Subsidiary for past due Taxes.
Except as indicated in Item 2.6 of the Disclosure Statement, all payments for
withholding taxes, unemployment insurance and other amounts required to be paid
for periods prior to the date hereof to any governmental authority in respect of
employment obligations of the Company and each Subsidiary, including, without
limitation, amounts payable pursuant to the Federal Insurance Contributions Act,
have been paid or shall be paid prior to the Closing and have been duly provided
for on the books and records of the Company and in the Financial Statements.
2.7 Indebtedness; Contracts; No Defaults.
(a) Item 2.7 of the Disclosure Schedule sets forth a true, complete and
correct list of all material instruments, agreements, indentures, mortgages,
guarantees, notes, commitments, accommodations, letters of credit or other
arrangements or understandings, whether written or oral, to which the Company or
any Subsidiary is a party (collectively, the "Operating Agreements"). An
agreement shall not be considered material for the purposes of this Section
2.7(a) if it provides for expenditures or receipts of less than $10,000 and has
been entered into by the Company or a Subsidiary in the ordinary course of
business. The Operating Agreements constitute all of the contracts, agreements,
understandings and arrangements required for the operation of the business of
the Company and the Subsidiaries or which have a material effect thereon. Copies
of all such material written Operating Agreements have previously been delivered
or otherwise made available to the Sellers and such copies are true, complete
and correct as of the date hereof.
(b) Except as disclosed in Item 2.7 of the Disclosure Schedule, neither the
Company, any Subsidiary, nor, to the Company's knowledge, any other person or
entity is in breach in any material respect of, or in default in any material
respect under, any material contract, agreement, arrangement, commitment or plan
to which the Company or any Subsidiary is a party, and no event or action has
occurred, is pending or is threatened, which, after the giving of notice,
passage of time or otherwise, would constitute or result in such a material
breach or material default by the Company or any Subsidiary or, to the knowledge
of the Company, any other person or entity. Neither the Company nor any
Subsidiary has received any notice of default under any contract, agreement,
arrangement, commitment or plan to which it is a party, which default has not
been cured to the satisfaction of, or duly waived by, the party claiming such
default on or before the date hereof.
2.8 Personal Property. Except as set forth in Item 2.8 of the Disclosure
Schedule, each of the Company and the Subsidiaries has good and marketable title
to all of its tangible personal property and assets, including, without
limitation, all of the assets reflected in the Financial Statements that have
not been disposed of in the ordinary course of business March 31, 1999 are free
and clear of all Liens or mortgages, except for any Lien for current taxes not
yet due and payable and
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such restrictions, if any, on the disposition of securities as may be imposed by
federal or applicable state securities laws.
2.9 Real Property. Item 2.9 of the Disclosure Schedule sets forth a true
and complete list of all real property owned by, or leased or subleased by or
to, the Company and its Subsidiaries (the "Company Real Property"). Except as
set forth in Item 2.9 of the Disclosure Schedules, each lease to which the
Company is a party is valid, binding and in full force and effect with respect
to the Company or a Subsidiary, as the case may be, and, to the knowledge of the
Company no notice of default or termination under any such lease is outstanding.
2.10 Compliance with Law. (a) Except as set forth in Item 2.10 of the
Disclosure Schedule, neither the Company nor any Subsidiary is conducting its
respective business or affairs in material violation of any applicable federal,
state or local law, ordinance, rule, regulation, court or administrative order,
decree or process, or any requirement of insurance carriers. Neither the Company
nor any Subsidiary has received any notice of violation or claimed violation of
any such law, ordinance, rule, regulation, order, decree, process or
requirement.
(b) Each of the Company and the Subsidiaries is in compliance in all
material respects with all applicable federal, state, local and foreign laws and
regulations relating to the protection of the environment and human health.
There are no claims, notices, actions, suits, hearings, investigations,
inquiries or proceedings pending or, to the knowledge of the Company, threatened
against the Company or any of the Subsidiaries that are based on or related to
any environmental matters or the failure to have any required environmental
permits, and there are no past or present conditions that the Company has reason
to believe are likely to give rise to any material liability or other
obligations of the Company or any Subsidiary under any environmental laws.
2.11 Permits and Licenses. Except as set forth in Item 2.11 of the
Disclosure Schedule, each of the Company and the Subsidiaries has all
certificates of occupancy, rights, permits, certificates, licenses, franchises,
approvals and other authorizations as are reasonably necessary to conduct its
respective business and to own, lease, use, operate and occupy its assets, at
the places and in the manner now conducted and operated, except those the
absence of which would not materially adversely affect its respective business.
Except as set forth in Item 2.11 of the Disclosure Schedule, as of the date
hereof, neither the Company nor any Subsidiary has received any written or oral
notice or claim pertaining to the failure to obtain any material permit,
certificate, license, approval or other authorization required by any federal,
state or local agency or other regulatory body, the failure of which to obtain
would materially and adversely affect its business.
2.12 Ordinary Course. Except as set forth in Item 2.12 of the Disclosure
Schedule, since December 31, 1999, each of the Company and the Subsidiaries has
conducted its business, maintained its real property and equipment and kept its
books of account, records and files, substantially in the same manner as
previously conducted, maintained or kept and solely in the ordinary course; it
being understood and acknowledged that the Company has been substantially
reducing its operations for some time.
2.13 No Adverse Changes. Except as set forth in Item 2.13 of the Disclosure
Schedule,
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since December 31, 1999, there has not been (a) any material adverse change in
the business, prospects, the financial or other condition, or the respective
assets or liabilities of the Company and the Subsidiaries as reflected in the
Financial Statements, (b) any material loss sustained by the Company or any
Subsidiary, including, but not limited to any loss on account of theft, fire,
flood, explosion, accident or other calamity, whether or not insured, which has
materially and adversely interfered, or may materially and adversely interfere,
with the operation of the Company's or any Subsidiary's business, or (c) to the
best knowledge of the Company, any event, condition or state of facts,
including, without limitation, the enactment, adoption or promulgation of any
law, rule or regulation, the occurrence of which materially and adversely does
or would affect the results of operations or the business or financial condition
of the Company or any Subsidiary; it being understood and acknowledged that the
Company has been substantially reducing its operations for some time.
2.14 Litigation. (a) Except as set forth in Item 2.14 of the Disclosure
Schedule, there is no claim, dispute, action, suit, proceeding or investigation
pending or, to the knowledge of the Company, threatened, against or affecting
the business of the Company or any Subsidiary, or challenging the validity or
propriety of the transactions contemplated by this Agreement, at law or in
equity or admiralty or before any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality, nor to the
knowledge of the Company, has any such claim, dispute, action, suit, proceeding
or investigation been pending or threatened, during the 12-month period
preceding the date hereof; (b) there is no outstanding judgment, order, writ,
ruling, injunction, stipulation or decree of any court, arbitrator or federal,
state, local, foreign or other governmental authority, board, agency, commission
or instrumentality, against or materially affecting the business of the Company
or any Subsidiary; and (c) neither the Company nor any Subsidiary has received
any written or verbal inquiry from any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality concerning
the possible violation of any law, rule or regulation or any matter disclosed in
respect of its business.
2.15 Insurance. The Company and the Subsidiaries do not currently maintain
any form of insurance.
2.16 Certificate of Incorporation and By-laws; Minute Books. The copies of
the Certificate of Incorporation and By-laws (or similar governing documents) of
the Company and each Subsidiary, and all amendments to each are true, correct
and complete. The minute books of the Company and each Subsidiary contain true
and complete records of all meetings and consents in lieu of meetings of their
respective Board of Directors (and any committees thereof), or similar governing
bodies, since the time of their respective organization. The stock books of the
Company and each Subsidiary are true, correct and complete.
2.17 Employee Benefit Plans. Except as set forth in Item 2.17 of the
Disclosure Schedule, neither the Company nor any Subsidiary maintains, nor has
the Company or any Subsidiary maintained in the past, any employee benefit plans
("as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), or any plans, programs, policies, practices,
arrangements or contracts (whether group or individual) providing for payments,
benefits or reimbursements to employees of the Company or any Subsidiary, former
employees, their
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beneficiaries and dependents under which such employees, former employees, their
beneficiaries and dependents are covered through an employment relationship with
the Company, any Subsidiary or any entity required to be aggregated in a
controlled group or affiliated service group with the Company for purposes of
ERISA or the Internal Revenue Code of 1986 (the "Code") (including, without
limitation, under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of
ERISA, at any relevant time ("Benefit Plans").
2.18 Patents; Trademarks and Intellectual Property Rights. Each of the
Company and the Subsidiaries owns or possesses sufficient legal rights to all
patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information, Internet web site(s), proprietary rights and processes
necessary for its business as now conducted without any conflict with or
infringement of the rights of others. There are no outstanding options, licenses
or agreements of any kind relating to the foregoing, and neither the Company nor
any Subsidiary is bound by, or a party to, any options, licenses or agreements
of any kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, proprietary rights and
processes of any other person or entity.
2.19 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Company directly
with the Sellers without the intervention of any Person on behalf of the Company
in such a manner as to give rise to any valid claim by any Person against any
Seller for a finder's fee, brokerage commission or similar payment.
2.20 Affiliate TransactExcept as set forth in Item 2.20 of the Disclosure
Schedule, neither the Company nor any officer, director or employee of the
Company (or any of the relatives or Affiliates of any of the aforementioned
Persons) is a party to any agreement, contract, commitment or transaction with
the Company or affecting the business of the Company, or has any interest in any
property, whether real, personal or mixed, or tangible or intangible, used in or
necessary to the Company which will subject the Sellers to any liability or
obligation from and after the Closing Date.
2.21 Existing Employment Agreements. The Company agrees to honor and assume
the employment contracts of individuals with The Xxxxxx.xxx, Inc. a subsidiary
of Pure Vision, agreements are acknowledged to exist with the following persons:
Xxxx Xxxx, D. Min., Xxxxx Xxxxxxx, Xxxxxxxxx XxXxx, Xxxxx Xxxxxxx and Xxxxxxx
Xxx.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers represents and warrants, jointly and severally to the
Company that now and/or as of the Closing:
3.1 Due Organization and Qualification; Subsidiaries; Due Authorization.
(a) Pure Vision and each Subsidiary of Pure Vision is a corporation duly
incorporated,
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validly existing and in good standing under the laws of its jurisdiction of
formation, with full corporate power and authority to own, lease and operate its
respective business and properties and to carry on its respective business in
the places and in the manner as presently conducted or proposed to be conducted.
Pure Vision and each Subsidiary is in good standing as a foreign corporation in
each jurisdiction in which the properties owned, leased or operated, or the
business conducted, by it requires such qualification except for any such
failure, which when taken together with all other failures, is not likely to
have a material adverse effect on the business of Pure Vision and its
Subsidiaries taken as a whole. Pure Vision holds the rights and ownership of the
Internet site "xxxxxxxxx.xxx" and will provide proof of such ownership and
copies of all contracts that relate to or are used by this site.
(b) Pure Vision does not own, directly or indirectly, any capital stock,
equity or interest in any corporation, firm, partnership, joint venture or other
entity, other than those (each, a "Subsidiary" and together, the "Subsidiaries")
set forth in Item 2.1 of the Disclosure Schedule of even date herewith, which
accompanies this Agreement and is incorporated herein by reference (the
"Disclosure Schedule"). Except as set forth in Item 2.1 of the Disclosure
Schedule, each Subsidiary is wholly owned by Pure Vision, all the outstanding
shares of capital stock of each Subsidiary are owned free and clear of all Liens
(as hereinafter defined), there is no contract, agreement, arrangement, option,
warrant, call, commitment or other right of any character obligating or
entitling any Subsidiary to issue, sell, redeem or repurchase any of its
securities, and there is no outstanding security of any kind convertible into or
exchangeable for securities of any Subsidiary.
(c) Each of Pure Vision and the Sellers has all requisite power and
authority to execute and deliver this Agreement, and to consummate the
transactions contemplated hereby and thereby. Each of Pure Vision and the
Sellers has taken all corporate action necessary for the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby,
and this Agreement constitutes the valid and binding obligation of each of Pure
Vision and the Sellers, enforceable against each of Pure Vision and the Sellers
in accordance with its respective terms, except as may be affected by
bankruptcy, insolvency, moratoria or other similar laws affecting the
enforcement of creditors' rights generally and subject to the qualification that
the availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefor may be brought.
3.2 No Conflicts or Defaults. The execution and delivery of this Agreement
by each of Pure Vision and the Sellers and the consummation of the transactions
contemplated hereby do not and shall not (a) contravene the Certificate of
Incorporation or By-laws of Pure Vision or the governing documents of any
Seller, if applicable, or (b) with or without the giving of notice or the
passage of time, (i) violate, conflict with, or result in a breach of, or a
default or loss of rights under, any material covenant, agreement, mortgage,
indenture, lease, instrument, permit or license to which Pure Vision, any of the
Subsidiaries or any Seller is a party or by which Pure Vision, any of the
Subsidiaries or any Seller or any of their respective assets are bound, or any
judgment, order or decree, or any law, rule or regulation to which Pure Vision,
any of the Subsidiaries or any Seller or any of their respective assets are
subject, (ii) result in the creation of, or give any party the right to create,
any Lien upon any of the assets of Pure Vision or any of the Subsidiaries, (iii)
terminate or give any party the right to terminate, amend, abandon or refuse to
perform, any material agreement,
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arrangement or commitment to which Pure Vision or any of the Subsidiaries is a
party or by which Pure Vision or any of the Subsidiaries or any of their
respective assets are bound, or (iv) accelerate or modify, or give any party the
right to accelerate or modify, the time within which, or the terms under which,
Pure Vision or any of the Subsidiaries is to perform any duties or obligations
or receive any rights or benefits under any material agreement, arrangement or
commitment to which it is a party.
3.3 Capitalization. The authorized capital stock of Pure Vision immediately
prior to giving effect to the transactions contemplated hereby consists of
100,000 authorized shares of Pure Vision Common Stock, no par value per share,
of which as of the date hereof 3,000 shares of Common Stock are issued and
outstanding. Set forth in Item 2.3 of the Disclosure Schedule is a list of all
Stockholders of Pure Vision, setting forth their names, addresses and number of
shares owned. All of the outstanding shares of Pure Vision Common Stock are, and
Pure Vision Shares when transferred in accordance with the terms hereof, will
be, duly authorized, validly issued, fully paid and non-assessable, and have not
been or, with respect to Pure Vision Shares, will not be transferred in
violation of any rights of third parties. The Pure Vision Shares are not subject
to any preemptive or subscription right, any voting trust agreement or other
contract, agreement, arrangement, option, warrant, call, commitment or other
right of any character obligating or entitling Pure Vision to issue, sell,
redeem or repurchase any of its securities, and there is no outstanding security
of any kind convertible into or exchangeable for Common Stock.
3.4 Financial Statements. Exhibit 2 to the Disclosure Schedule contains
copies of the consolidated balance sheets of Pure Vision at December 31, 1999,
and the related statements of operations, stockholders' equity and cash flows
for the fiscal quarter then ended, including the notes thereto, as reviewed by ,
certified public accountants (all such statements being the "Pure Vision
Financial Statements"). Except as set forth in Item 3.4 to the Disclosure
Schedule, the Financial Statements, together with the notes thereto, have been
prepared in accordance with generally accepted accounting principles applied on
a basis consistent throughout all periods presented, subject to audit
adjustments, which are not expected to be material. Such statements present
fairly the financial position of Pure Vision as of the dates and for the periods
indicated. The books of account and other financial records of Pure Vision have
been maintained in accordance with good business practices.
3.5 Further Financial Matters. (a) Except as set forth in Item 3.5 to the
Disclosure Schedule, neither Pure Vision nor any of the Subsidiaries has any
material liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or otherwise, which
are required to be reflected or reserved in a balance sheet or the notes thereto
under generally accepted accounting principles, but which are not reflected in
the Financial Statements.
(b) The forecasted operations statements and cash flow statements of Pure
Vision, true and complete copies of which have been delivered to the Company,
were prepared in good faith on the assumptions stated therein, which assumptions
were believed to be reasonable in light of conditions existing at the time of
delivery of such forecasts, and represented, at the time of delivery, Pure
Vision's best estimate of its future financial performance, it being recognized
that such forecasts
10
do not constitute a warranty as to the future performance of Pure Vision and
that actual results may vary from forecasted results.
3.6 Taxes. Except as indicated in Item 3.6 of the Disclosure Schedule, each
of Pure Vision and the Subsidiaries has filed all United States federal, state,
county, local and foreign national, provincial and local tax returns and reports
which were required to be filed on or prior to the date hereof, and has paid all
Taxes (and any related penalties, fines and interest) which have become due
pursuant to such returns or reports or pursuant to any assessment which has
become payable, or, to the extent its liability for any Taxes (and any related
penalties, fines and interest) has not been fully discharged, the same have been
properly reflected as a liability on the books and records of Pure Vision and
adequate reserves there for have been established. All such returns and reports
filed on or prior to the date hereof have been properly prepared and are true,
correct (and to the extent such returns reflect judgments made by Pure Vision or
a Subsidiary, as the case may be, such judgments were reasonable under the
circumstances) and complete in all material respects. Except as indicated in 3.6
of the Disclosure Schedule, no extension for the filing of any such return or
report is currently in effect. Except as indicated in Item 3.6 of the Disclosure
Schedule, no tax return or tax return liability of Pure Vision or any Subsidiary
has been audited or, presently under audit. All taxes and any penalties, fines
and interest which have been asserted to be payable as a result of any audits
have been paid. Except as indicated in Item 3.6 of the Disclosure Schedule,
neither Pure Vision nor any Subsidiary has given or been requested to give
waivers of any statute of limitations relating to the payment of any Taxes (or
any related penalties, fines and interest). There are no claims pending or, to
the knowledge of Pure Vision, threatened, against Pure Vision or any Subsidiary
for past due Taxes. Except as indicated in Item 3.6 of the Disclosure Statement,
all payments for withholding taxes, unemployment insurance and other amounts
required to be paid for periods prior to the date hereof to any governmental
authority in respect of employment obligations of Pure Vision and each
Subsidiary, including, without limitation, amounts payable pursuant to the
Federal Insurance Contributions Act, have been paid or shall be paid prior to
the Closing and have been duly provided for on the books and records of Pure
Vision and in the Financial Statements.
3.7 Indebtedness; Contracts; No Defaults.
(a) Item 3.7 of the Disclosure Schedule sets forth a true, complete and
correct list of all material instruments, agreements, indentures, mortgages,
guarantees, notes, commitments, accommodations, letters of credit or other
arrangements or understandings, whether written or oral, to which Pure Vision or
any Subsidiary is a party (collectively, the "Pure Vision Operating
Agreements"). An agreement shall not be considered material for the purposes of
this Section 3.7(a) if it provides for expenditures or receipts of less than
$2,000 and has been entered into by Pure Vision or a Subsidiary in the ordinary
course of business. The Pure Vision Operating Agreements constitute all of the
contracts, agreements, understandings and arrangements required for the
operation of the business of Pure Vision and the Subsidiaries or which have a
material effect thereon. Copies of all such material written Pure Vision
Operating Agreements have previously been delivered or otherwise made available
to the Company and such copies are true, complete and correct as of the date
hereof.
11
(b) Except as disclosed in Item 3.7 of the Disclosure Schedule, neither
Pure Vision, any Subsidiary, nor, to Pure Vision's knowledge, any other person
or entity is in breach in any material respect of, or in default in any material
respect under, any material contract, agreement, arrangement, commitment or plan
to which Pure Vision or any Subsidiary is a party, and no event or action has
occurred, is pending or is threatened, which, after the giving of notice,
passage of time or otherwise, would constitute or result in such a material
breach or material default by Pure Vision or any Subsidiary or, to the knowledge
of Pure Vision, any other person or entity. Neither Pure Vision nor any
Subsidiary has received any notice of default under any contract, agreement,
arrangement, commitment or plan to which it is a party, which default has not
been cured to the satisfaction of, or duly waived by, the party claiming such
default on or before the date hereof.
3.8 Personal Property. Except as set forth in Item 3.8 of the Disclosure
Schedule, each of Pure Vision and the Subsidiaries has good and marketable title
to all of its tangible personal property and assets, including, without
limitation, all of the assets reflected in the Financial Statements that have
not been disposed of in the ordinary course of business since December 31, 1999,
free and clear of all Liens or mortgages, except for any Lien for current taxes
not yet due and payable and such restrictions, if any, on the disposition of
securities as may be imposed by federal or applicable state securities laws.
3.9 Real Property. (a) Item 3.9 of the Disclosure Schedule sets forth a
true and complete list of all real property owned by, or leased or subleased by
or to, Pure Vision and its Subsidiaries (the "Pure Vision Real Property").
(b) Except as set forth in Item 3.9 of the Disclosure Statement, each lease
to which Pure Vision is a party is valid, binding and in full force and effect
with respect to Pure Vision or a Subsidiary, as the case may be, and, to the
knowledge of Pure Vision, all other parties thereto; no notice of default or
termination under any such lease is outstanding.
3.10 Compliance with Law. (a) Except as set forth in Item 3.10 of the
Disclosure Schedule, neither Pure Vision nor any Subsidiary is conducting its
respective business or affairs in material violation of any applicable federal,
state or local law, ordinance, rule, regulation, court or administrative order,
decree or process, or any requirement of insurance carriers. Neither Pure Vision
nor any Subsidiary has received any notice of violation or claimed violation of
any such law, ordinance, rule, regulation, order, decree, process or
requirement.
(b) Each of Pure Vision and the Subsidiaries is in compliance in all
material respects with all applicable federal, state, local and foreign laws and
regulations relating to the protection of the environment and human health.
There are no claims, notices, actions, suits, hearings, investigations,
inquiries or proceedings pending or, to the knowledge of Pure Vision, threatened
against Pure Vision or any of the Subsidiaries that are based on or related to
any environmental matters or the failure to have any required environmental
permits, and there are no past or present conditions that Pure Vision has reason
to believe are likely to give rise to any material liability or other
obligations of Pure Vision or any Subsidiary under any environmental laws.
3.11 Permits and Licenses. Except as set forth in Item 3.11 of the
Disclosure Schedule,
12
each of Pure Vision and the Subsidiaries has all certificates of occupancy,
rights, permits, certificates, licenses, franchises, approvals and other
authorizations as are reasonably necessary to conduct its respective business
and to own, lease, use, operate and occupy its assets, at the places and in the
manner now conducted and operated, except those the absence of which would not
materially adversely affect its respective business. Except as set forth in Item
3.11 of the Disclosure Schedule, as of the date hereof, neither Pure Vision nor
any Subsidiary has received any written or oral notice or claim pertaining to
the failure to obtain any material permit, certificate, license, approval or
other authorization required by any federal, state or local agency or other
regulatory body, the failure of which to obtain would materially and adversely
affect its business.
3.12 Ordinary Course. Except as set forth in Item 3.12 of the Disclosure
Schedule, since December 31, 1999, each of Pure Vision and the Subsidiaries has
conducted its business, maintained its real property and equipment and kept its
books of account, records and files, substantially in the same manner as
previously conducted, maintained or kept and solely in the ordinary course; it
being understood and acknowledged that Pure Vision has been substantially
reducing its operations for some time.
3.13 No Adverse Changes. Except as set forth in Item 3.13 of the Disclosure
Schedule, since December 31, 1999, there has not been (a) any material adverse
change in the business, prospects, the financial or other condition, or the
respective assets or liabilities of Pure Vision and the Subsidiaries as
reflected in the Financial Statements, (b) any material loss sustained by Pure
Vision or any Subsidiary, including, but not limited to any loss on account of
theft, fire, flood, explosion, accident or other calamity, whether or not
insured, which has materially and adversely interfered, or may materially and
adversely interfere, with the operation of Pure Vision's or any Subsidiary's
business, or (c) to the best knowledge of Pure Vision, any event, condition or
state of facts, including, without limitation, the enactment, adoption or
promulgation of any law, rule or regulation, the occurrence of which materially
and adversely does or would affect the results of operations or the business or
financial condition of Pure Vision or any Subsidiary; it being understood and
acknowledged that Pure Vision has been substantially reducing its operations for
some time.
3.14 Litigation. (a) Except as set forth in Item 3.14 of the Disclosure
Schedule, there is no claim, dispute, action, suit, proceeding or investigation
pending or, to the knowledge of Pure Vision, threatened, against or affecting
the business of Pure Vision or any Subsidiary, or challenging the validity or
propriety of the transactions contemplated by this Agreement, at law or in
equity or admiralty or before any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality, nor to the
knowledge of Pure Vision, has any such claim, dispute, action, suit, proceeding
or investigation been pending or threatened, during the 12-month period pre
ceding the date hereof; (b) there is no outstanding judgment, order, writ,
ruling, injunction, stipulation or decree of any court, arbitrator or federal,
state, local, foreign or other governmental authority, board, agency, commission
or instrumentality, against or materially affecting the business of Pure Vision
or any Subsidiary; and (c) neither Pure Vision nor any Subsidiary has received
any written or verbal inquiry from any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality concerning
the possible violation of any law, rule or regulation or any matter disclosed in
respect of its business.
13
3.15 Insurance. Pure Vision and the Subsidiaries maintain insurance against
all risks customarily insured against by companies in its industry. All such
policies are in full force and effect, and neither Pure Vision nor any
Subsidiary has received any notice from any insurance company suspending,
revoking, modifying or canceling (or threatening such action) any insurance
policy issued to Pure Vision.
3.16 Certificate of Incorporation and By-laws; Minute Books. The copies of
the Certificate of Incorporation and By-laws (or similar governing documents) of
Pure Vision and each Subsidiary, and all amendments to each are true, correct
and complete. The minute books of Pure Vision and each Subsidiary contain true
and complete records of all meetings and consents in lieu of meetings of their
respective Board of Directors (and any committees thereof), or similar governing
bodies, since the time of their respective organization. The stock books of Pure
Vision and each Subsidiary are true, correct and complete.
3.17 Employee Benefit Plans. Except as set forth in Item 3.17 of the
Disclosure Schedule, neither Pure Vision nor any Subsidiary maintains, nor has
Pure Vision or any Subsidiary maintained in the past, any employee benefit plans
("as defined in Section 3(3) of the "ERISA"), or any plans, programs, policies,
practices, arrangements or contracts (whether group or individual) providing for
payments, benefits or reimbursements to employees of Pure Vision or any
Subsidiary, former employees, their beneficiaries and dependents under which
such employees, former employees, their beneficiaries and dependents are covered
through an employment relationship with Pure Vision, any Subsidiary or any
entity required to be aggregated in a controlled group or affiliated service
group with Pure Vision for purposes of ERISA or the Internal Revenue Code of
1986 (the "Code") (including, without limitation, under Section 414(b), (c), (m)
or (o) of the Code or Section 4001 of ERISA, at any relevant time ("Pure Vision
Benefit Plans").
3.18 Patents; Trademarks and Intellectual Property Rights. Each of Pure
Vision and the Subsidiaries owns or possesses sufficient legal rights to all
patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information, Internet web site(s) proprietary rights and processes
necessary for its business as now conducted without any conflict with or
infringement of the rights of others. There are no outstanding options, licenses
or agreements of any kind relating to the foregoing, and neither Pure Vision nor
any Subsidiary is bound by, or a party to, any options, licenses or agreements
of any kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, proprietary rights and
processes of any other person or entity.
3.19 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Pure Vision directly
with the Sellers without the intervention of any Person on behalf of Pure Vision
in such a manner as to give rise to any valid claim by any Person against any
Seller for a finder's fee, brokerage commission or similar payment.
3.20 Subsidiaries. Item 3.20 of the Disclosure Statements sets forth all
the Subsidiaries of Pure Vision. All the outstanding shares of capital stock of,
or other equity interests in, each such subsidiary have been validly issued and
are fully paid and non-assessable and are owned directly or
14
indirectly by Pure Vision, free and clear of all Liens and free of any other
restriction (including any restriction on the right to vote, sell or otherwise
dispose of such capital stock or other ownership interests). Each Subsidiary of
Pure Vision is wholly owned by Pure Vision.
3.21 Purchase for Investment.
(a) Such Seller is acquiring the Company Shares for investment for such
Seller's own account and not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and such Seller has no present
intention of selling, granting any participation in, or otherwise distributing
the same. Such Seller further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
a participation to such person or to any third person, with respect to any of
the Company Shares.
(b) Such Seller understands that the Company Shares are not registered
under the Act on the ground that the sale and the issuance of securities
hereunder is exempt from registration under the Act pursuant to Section 4(2)
thereof, and that the Company's reliance on such exemption is predicated on such
Seller's representations set forth herein. Such Seller is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D under the Act.
3.22 Investment Experience. Such Seller acknowledges that it can bear the
economic risk of its investment, and has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the investment in the Company Shares.
3.23 Information. The Sellers have carefully reviewed such information as
each Seller deemed necessary to evaluate an investment in the Company Shares. To
the full satisfaction of each Seller, it has been furnished all materials that
it has requested relating to the Company and the issuance of the Company Shares
hereunder, and each Seller has been afforded the opportunity to ask questions of
representatives of the Company to obtain any information necessary to verify the
accuracy of any representations or information made or given to the Sellers.
Notwithstanding the foregoing, nothing herein shall derogate from or otherwise
modify the representations and warranties of the Company set forth in this
Agreement, on which each of the Sellers has relied in making an exchange of the
Pure Vision Shares of the Company Shares.
3.24 Restricted Securities. Such Seller understands that the Company Shares
may not be sold, transferred, or otherwise disposed of without registration
under the Act or an exemption there from, and that in the absence of an
effective registration statement covering the Company Shares or any available
exemption from registration under the Act, the Company Shares must be held
indefinitely. Such Seller is aware that the Company Shares may not be sold
pursuant to Rule 144 promulgated under the Act unless all of the conditions of
that Rule are met. Among the conditions for use of Rule 144 may be the
availability of current information to the public about the Company.
ARTICLE IV
INDEMNIFICATION
15
4.1 Indemnity of Sellers. The Company agrees to defend, indemnify and hold
harmless each Seller from and against, and to reimburse each Seller with respect
to, all liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, asserted against or incurred by
such Seller by reason of, arising out of, or in connection with any material
breach of any representation or warranty contained in this Agreement made by the
Company or in any document or certificate delivered by the Company pursuant to
the provisions of this Agreement or in connection with the transactions
contemplated thereby.
4.2 Indemnity of the Company. Each of the Sellers agrees to jointly and
severally defend, indemnify and hold harmless the Company from and against, and
to reimburse the Company with respect to, all liabilities, losses, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, asserted against or incurred by such Seller by reason of, arising
out of, or in connection with any material breach of any representation or
warranty contained in this Agreement and made by the Company or in any document
or certificate delivered by the Company pursuant to the provisions of this
Agreement or in connection with the transactions contemplated thereby.
4.3 Indemnification Procedure.
A party (an "Indemnified Party") seeking indemnification shall give prompt
notice to the other party (the "Indemnifying Party") of any claim for
indemnification arising under this Article 4. The Indemnifying Party shall have
the right to assume and to control the defense of any such claim with counsel
reasonably acceptable to such Indemnified Party, at the Indemnifying Party's own
cost and expense, including the cost and expense of reasonable attorneys' fees
and disbursements in connection with such defense, in which event the
Indemnifying Party shall not be obligated to pay the fees and disbursements of
separate counsel for such in such action. In the event, however, that such
Indemnified Party's legal counsel shall determine that defenses may be available
to such Indemnified Party that are different from or in addition to those
available to the Indemnifying Party, in that there could reasonably be expected
to be a conflict of interest if such Indemnifying Party and the Indemnified
Party have common counsel in any such proceeding, or if the Indemnified Party
has not assumed the defense of the action or proceedings, then such Indemnifying
Party may employ separate counsel to represent or defend such Indemnified Party,
and the Indemnifying Party shall pay the reasonable fees and disbursements of
counsel for such Indemnified Party. No settlement of any such claim or payment
in connection with any such settlement shall be made without the prior consent
of the Indemnifying Party which consent shall not be unreasonably withheld.
ARTICLE V
DELIVERIES
5.1 Items to be delivered to Pure Vision prior to or at Closing by the
Company.
(a) articles of incorporation and amendments thereto, bylaws and amendments
thereto, certificate of good standing in the Company's state of incorporation;
16
(b) all applicable schedules hereto;
(c) all minutes and resolutions of board of director and shareholder
meetings in possession of the Company;
(d) shareholder list;
(e) all financial statements and tax returns in possession of the Company;
(f) copies of all SEC filings;
(g) resolution from the Company's current directors appointing designees of
Pure Vision to the Company's Board of Directors;
(h) letters of resignation from the Company's current officers and
directors to be effective upon Closing and after the appointments described in
this section;
(i) certificates representing 3,513,488 shares of the Company's $.001 par
value common stock issued in the denominations as set forth opposite their
respective names on Schedule I to this Agreement, duly authorized, validly
issued, fully paid for and non-assessable;
(j) wire in the amount of $100,000 for payment of debt owed to Centralized
Escrow Systems, Inc. by Pure Vision on or before February 10, 2000; and, wire in
the amount of $100,000.00 as set forth in Section 1.1(d) on or before February
14, 2000;
(k) copies of board, and if applicable, shareholder resolutions approving
this transaction and authorizing the issuances of the shares hereto;
(l) any other document reasonably requested by Pure Vision that it deems
necessary for the consummation of this transaction
5.2 Items to be delivered to the Company prior to or at Closing by Pure
Vision.
(a) articles of incorporation and amendments thereto, bylaws and amendments
thereto, certificate of good standing in the Company's state of incorporation;
(b) all applicable schedules hereto;
(c) all minutes and resolutions of board of director and shareholder
meetings in possession of the Company;
(d) shareholder list;
(e) all financial statements and tax returns in possession of the Company;
17
(f) resolution from Pure Vision' current directors appointing designees of
Pure Vision to the Company's Board of Directors;
(g) certificates representing 100% of Pure Vision' common stock as set
forth opposite their respective names on Schedule I to this Agreement, duly
authorized, validly issued, fully paid for and non-assessable;
(h) copies of board, and if applicable, shareholder resolutions approving
this transaction and authorizing the issuances of the shares hereto;
(i) copies of Pure Vision' current business plan;
(j) proof of ownership of the Internet site "xxxxxxxxx.xxx" and copies of
all related contracts that in any fashion affect the site;
(k) any other document reasonably requested by the Company that it deems
necessary for the consummation of this transaction
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions Precedent to Closing. The obligations of the Parties under
this Agreement shall be and are subject to fulfillment, prior to or at the
Closing, of each of the following conditions:
(a) That each of the representations and warranties of the Parties
contained herein shall be true and correct at the time of the Closing date as if
such representations and warranties were made at such time;
(b) That the Parties shall have performed or complied with all agreements,
terms and conditions required by this Agreement to be performed or complied with
by them prior to or at the time of the Closing;
(c) That the Parties shall be satisfied with the results of their due
diligence and review of the other books and records.
ARTICLE VII
TERMINATION
7.1 Termination. This Agreement may be terminated at any time before or, at
Closing, by:
(a) The mutual agreement of the Constituent Parties;
18
(b) Any party if:
(i) Any provision of this Agreement applicable to a party shall be
materially untrue or fail to be accomplished;
(ii) Any legal proceeding shall have been instituted or shall be
imminently threatening to delay, restrain or prevent the consummation
of this Agreement; or
(iii) The conditions precedence to Closing are not satisfied.
(c) Upon termination of this Agreement for any reason, in accordance with
the terms and conditions set forth in this paragraph, each said party shall bear
all costs and expenses as each party has incurred and no party shall be liable
to the other.
ARTICLE VIII
MISCELLANEOUS
8.1 Survival of Representations, Warranties and Agreements. All
representations and warranties and statements made by a party to in this
Agreement or in any document or certificate delivered pursuant hereto shall
survive the Closing Date for so long as the applicable statute of limitations
shall remain open. Each of the parties hereto is executing and carrying out the
provisions of this agreement in reliance upon the representations, warranties
and covenants and agreements contained in this agreement or at the closing of
the transactions herein provided for and not upon any investigation which it
might have made or any representations, warranty, agreement, promise or
information, written or oral, made by the other party or any other person other
than as specifically set forth herein.
8.2 Access to Books and Records. During the course of this transaction
through Closing, each party agrees to make available for inspection all
corporate books, records and assets, and otherwise afford to each other and
their respective representatives, reasonable access to all documentation and
other information concerning the business, financial and legal conditions of
each other for the purpose of conducting a due diligence investigation thereof.
Such due diligence investigation shall be for the purpose of satisfying each
party as to the business, financial and legal condition of each other for the
purpose of determining the desirability of consummating the proposed
transaction. The Parties further agree to keep confidential and not use for
their own benefit, except in accordance with this Agreement any information or
documentation obtained in connection with any such investigation.
8.3 Further Assurances. If, at any time after the Closing, the parties
shall consider or be advised that any further deeds, assignments or assurances
in law or that any other things are necessary, desirable or proper to complete
the merger in accordance with the terms of this agreement or to vest, perfect or
confirm, of record or otherwise, the title to any property or rights of the
parties hereto, the Parties agree that their proper officers and directors shall
execute and deliver all such proper deeds, assignments and assurances in law and
do all things necessary, desirable or proper to
19
vest, perfect or confirm title to such property or rights and otherwise to carry
out the purpose of this Agreement, and that the proper officers and directors
the parties are fully authorized to take any and all such action.
8.4 Notice. All communications, notices, requests, consents or demands
given or required under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered to, or received by prepaid registered or
certified mail or recognized overnight courier addressed to, or upon receipt of
a facsimile sent to, the party for whom intended, as follows, or to such other
address or facsimile number as may be furnished by such party by notice in the
manner provided herein:
If to the Company:
C/X Xxxxxxx, Xxxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Sellers:
Xxxxxxxxx XxXxx
0000 X. Xx Xxxxxx Xxxx, Xxxxx X
Xxx Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
8.5 Entire Agreement. This Agreement, the Disclosure Schedule and any
instruments and agreements to be executed pursuant to this Agreement, sets forth
the entire understanding of the parties hereto with respect to its subject
matter, merges and supersedes all prior and contemporaneous understandings with
respect to its subject matter and may not be waived or modified, in whole or in
part, except by a writing signed by each of the parties hereto. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance. Failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver of
its rights under such provision.
8.6 Successors and Assigns. This Agreement shall be binding upon,
enforceable against and inure to the benefit of, the parties hereto and their
respective heirs, administrators, executors, personal representatives,
successors and assigns, and nothing herein is intended to confer any right,
remedy or benefit upon any other person. This Agreement may not be assigned by
any party hereto except with the prior written consent of the other parties,
which consent shall not be unreasonably withheld.
8.7 Governing Law. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of California are applicable
to agreements made and fully to be performed in such state, without giving
effect to conflicts of law principles.
20
8.8 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8.9 Construction. Headings contained in this Agreement are for convenience
only and shall not be used in the interpretation of this Agreement. References
herein to Articles, Sections and Exhibits are to the articles, sections and
exhibits, respectively, of this Agreement. The Disclosure Schedule is hereby
incorporated herein by reference and made a part of this Agreement. As used
herein, the singular includes the plural, and the masculine, feminine and neuter
gender each includes the others where the context so indicates.
8.10 Severability. If any provision of this Agreement is held to be invalid
or unenforceable by a court of competent jurisdiction, this Agreement shall be
interpreted and enforceable as if such provision were severed or limited, but
only to the extent necessary to render such provision and this Agreement
enforceable.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
Area Investment and Development Company Shareholder of Pure Vision Internet,
Inc.
Provided wire transfer in the amount
of $100,000.00 is received by the end
of business on Feb. 10th 2000 and
provided that the wire transfer in
the amount of $100,000.00 is received
by the end of business on or before
February 14, 2000 as per Section
1.1(d). In the event either wire is
not received this agreement shall be
null and void.
By: /s/ Xxxxxxxxx XxXxx
---------------------------------
Xxxxxxxxx XxXxx
Title: Shareholder
By: /s/ Xxxx Xxxxxx
-----------------------
Name: Xxxx Xxxxxx
Title: President
21
SCHEDULE 1
Seller's Name and Address Number
of Pure Vision Shares Number of Company Shares
Xxxxxxxxx XxXxx 3,000 2,043,226 to the below
listed designees:
List of Designees:
Name Number of Company Shares from
Xx. XxXxx'x 2,043,226
Xxxxx Xxxxxx 255,492
Xxxxxx Xxxxxxxxxxx 255,492
Venture-Net Partners, LP 179,998
Xxxxx Xxxxxxx 3,750
Xxxx Xxxxxxx 3,750
Xxxxxxx X. Xxxxxx, Xx. Lit.D 2,500
Xxxxx Xxxx 2,500
Xxxxx Xxxxxxxx 2,500
Xxxx Xxxxxx 500
Xxxxx and Xxxx Xxxxxxx 1,000
Xxx Xxxxx 1,000
Xxxxx Xxxxxxx, Xx 6,000
Xxx Xxxx 17,501
Xxxx X. Xxxxxx, X.X 33,783
Xxxxxxx Xxx 255,492
Xxxx Xxxx, D.Min 255,492
Xxxxx Xxxxxxx 255,492
Xxxxx Xxxxxxx 255,492
Xxxxxxxxx XxXxx 255,492
List of Designees to receive stock options of Seller from each price group of
175,000 in the following amounts:
Xxxxx Xxxxxx 25,000 shares
Xxxxx Xxxxxxxxxxx 25,000 shares
Xxxxx Xxxxxx 40,000 shares
Xxxxx Xxxxxxx 40,000 shares
Xxxxxxxxx XxXxx 40,000 shares
Xxxxxxx Xxx 5,000 shares
22
ADDENDUM
TO
STOCK PURCHASE AGREEMENT
Now comes, Area Development and Investment Company, a Utah corporation
(whose name is to be changed to Maxx International, Inc.) and Xxxxxxxxx XxXxx,
an individual resident of the State of California, the only signatories to that
certain Stock Purchase Agreement dated as of February , 2000 between them.
Whereas the parties are in agreement that unavoidable delays have occurred
to the closing of the agreements set forth in the Stock Purchase Agreement on or
before March 14, 2000, the parties hereto agree as follows:
1. The time and date for the closing stated in the Stock Purchase Agreement
in paragraph 1.2 Time and Place of Closing. Shall be amended to read as follows:
"The closing of the transaction contemplated hereby (the "Closing") shall
take place at the offices of the Company's counsel on or before March 21, 2000
(the "Closing Date") at 10:00 A.M., New York time, or at such other place or
time as the Company and the Sellers may agree."
2. All other provisions of the Stock Purchase Agreement, except as modified
by the change to the Closing Date, shall remain as stated and no other change is
intended by the parties hereto.
EXECUTED THIS DAY OF MARCH, 2000.
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Area Development and Investment Company
A Utah Corporation Xxxxxxxxx XxXxx
By: /s/ Xxxx Xxxxxx Signature: /s/ Xxxxxxxxx XxXxx
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Name: Xxxx Xxxxxx
Title: President
