Exhibit 10.1
Form 8-K, April 18, 2002
American Sports History, Inc.
File No. 00-00000-00
PLAN OF REORGANIZATION AND ACQUISITION
BY WHICH
TREASURY INTERNATIONAL, INC.
(A DELAWARE CORPORATION)
SHALL ACQUIRE
AMERICAN SPORTS ACADEMY, LLC
(A NEW YORK CORPORATION)
FROM AMERICAN SPORTS HISTORY, INC.
(A NEVADA CORPORATION)
This PLAN OF REORGANIZATION AND ACQUISITION ("Agreement") is made and dated
this 18th day of April 2002 by and between the above referenced corporations,
and shall become effective on "the Closing Date" as defined herein.
I. THE INTERESTED PARTIES
A. THE PARTIES TO THIS AGREEMENT
1. Treasury International, Inc., a Delaware corporation ("Treasury").
2. American Sports Academy, LLC, a New York Limited Liability Company
("American").
3. American Sports History, Inc., a Nevada corporation, ("Shareholder")
owner of 100% of the outstanding interests of American.
4. Treasury, American, and the Shareholder may be referred to
collectively herein as the "Parties."
II. RECITALS
A. THE CAPITAL OF TREASURY AND AMERICAN
1. The capital of Treasury consists of 100,000,000 shares of Common Stock,
$.001 par value, authorized, of which 4,421,211 are issued and outstanding as of
the date of this Agreement, and no shares of Preferred Stock.
2. The capital of American consists of one membership interests outstanding
all of which are issued to American Sports History, Inc., a Nevada corporation.
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B. THE BACKGROUND FOR THE ACQUISITION
Treasury desires to acquire American, and the directors of the Shareholder
desire to sell American to Treasury.
III. CONDITIONS PRECEDENT TO REORGANIZATION
A. DIRECTOR APPROVAL
The Board of Directors of the Parties respectively shall have determined
that it is advisable and in the best interests of each of them and both of them
to proceed with the acquisition by Treasury of American.
B. EFFECTIVE DATE
This Plan of Reorganization and Acquisition shall become effective on a
date designated hereinafter as the "Closing Date"; provided that the following
conditions precedent shall have been met, or waived in writing by the Parties:
1. At the Closing, Treasury shall issue 100,000 shares of Treasury Common
Stock to the Shareholder and deliver a $100,000 Promissory Note to Shareholder.
2. Each Party shall have furnished to the other Party all corporate and
financial information which is customary and reasonable, to conduct its
respective due diligence, normal for this kind of transaction. If any Party
determines that there is a reason not to complete this Plan of Reorganization
and Acquisition as a result of their due diligence examination, then they must
give written notice to the other Parties prior to the expiration of the due
diligence examination period. The Due Diligence period, for purposes of this
paragraph, shall expire on a date determined by the Parties, which shall be no
later than sixty days after the Closing Date.
3. All of the terms, covenants and conditions of this Plan of
Reorganization and Acquisition to be complied with or performed by each Party
for Closing shall have been complied with, performed or waived in writing.
4. The representations and warranties of the Parties, contained in this
Plan of Reorganization and Acquisition, as herein contemplated, except as
amended, altered or waived by the Parties in writing, shall be true and correct
in all material respects at the Closing Date with the same force and effect as
if such representations and warranties are made at and as of such time; and each
Party shall provide the other with a corporate certificate, of a director of
each Party, dated the Closing Date, to the effect, that all conditions precedent
have been met, and that all representations and warranties of such Party are
true and correct as of that date. The form and substance of each Party's
certification shall be in form reasonably satisfactory to the other.
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C. TERMINATION
This Plan of Reorganization and Acquisition may be terminated at any time
prior to the Closing Date, whether before or after approval by the shareholders
of the Parties: (i) by mutual consent of the Parties; or (ii) by any Party if
any other Party is unable to meet the specific conditions precedent applicable
to its performance within a reasonable time. In the event that termination of
this Plan of Reorganization and Acquisition occurs, as provided above, this Plan
of Reorganization and Acquisition shall forthwith become void and there shall be
no liability on the part of any Party or its respective officers, directors and
managers.
IV. PLAN OF ACQUISITION
A. REORGANIZATION AND ACQUISITION
Treasury and American are hereby reorganized, such that Treasury shall
acquire all the issued and outstanding membership interests of American with all
of its current assets, liabilities and businesses, and American shall become a
wholly owned subsidiary of Treasury.
B. SURVIVING CORPORATION
Both Treasury and American shall survive the Reorganization herein
contemplated and shall continue to be governed by the laws of their respective
jurisdiction. The resulting parent corporation is the entity responsible for the
rights of dissenting shareholders.
C. SURVIVING ARTICLES OF INCORPORATION
The Articles of Incorporation and Operating Agreement of Treasury and
American, respectively, shall remain in full force and effect, unchanged.
D. SURVIVING BYLAWS
The Bylaws of both Treasury and American shall remain in full force and
effect, unchanged.
E. PURCHASE PRICE
At Closing, Treasury shall purchase all of the issued and outstanding
membership interests of American for the consideration as follows:
1. Issuance and delivery to Shareholder of 100,000 shares of Treasury
Common Stock, and
2. Delivery of a $100,000 Promissory Note due and payable two years after
the Closing with interest of seven percent (7%) per annum payable semi-annually,
and
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3. Payment, semi-annually, to Shareholder of five percent (5%) of the net
profits earned by American, up to an aggregate amount of $500,000. For purposes
of this Agreement, "net profit" shall mean American's net sales plus other
income, less (i) cost of goods sold and (ii) all expenses and charges of every
kind and description accrued by it (including without limitation any corporate
overhead fees paid to Treasury), all as determined in accordance with generally
accepted accounting principles consistently applied.
4. Also at the Closing, the Shareholder will transfer and convey 100
percent of the issued and outstanding membership interests of American to
Treasury in form and substance satisfactory to Treasury.
F. OTHER CONDITIONS OF ACQUISITIONS
1. American shall own all of the assets it currently owns except as may be
sold or transferred in the ordinary course of business;
2. Receipt by Treasury, prior to Closing, of an Indemnification Agreement
signed by Xxxxxxx Xxxxx in a form and content acceptable to Treasury; and
3. American shall provide Treasury with the financial records necessary for
Treasury's accountants to audit American for the years-ending January 31, 2001
and January 31, 2002.
4. At the Closing, American shall have no more than $80,000.00 in
liabilities, including contingent or otherwise.
G. FURTHER ASSURANCE, GOOD FAITH AND FAIR DEALING
The directors and managers of each Party shall and will execute and deliver
any and all necessary documents, acknowledgments and assurances and do all
things proper to confirm or acknowledge any and all rights, titles and interests
created or confirmed herein; and all Parties covenant hereby to deal fairly and
in good faith with each other and each others shareholders.
V. GENERAL MUTUAL REPRESENTATIONS AND WARRANTIES
The purpose and general import of the Mutual Representations and Warranties
are that each Party has made appropriate full disclosure to the others, that no
material information has been withheld, and that the information exchanged is
accurate, true and correct.
A. ORGANIZATION AND QUALIFICATION
Each Party warrants and represents that it is duly organized and in good
standing, and is duly qualified to conduct any business it may be conducting, as
required by law or local ordinance.
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B. CORPORATE AUTHORITY
Each Party warrants and represents that it has corporate authority, under
the laws of its jurisdiction and its constituent documents, to do each and every
element of performance to which it has agreed, and which is reasonably
necessary, appropriate and lawful, to carry out this Agreement in good faith.
C. OWNERSHIP OF ASSETS AND PROPERTY
Each Party warrants and represents that it has lawful title and ownership
of its property as reported to the other, and as disclosed in its financial
statements.
D. ABSENCE OF CERTAIN CHANGES OR EVENTS
Each Party warrants and represents that there are no material changes of
circumstances or events which have not been fully disclosed to the other Party,
and which, if different than previously disclosed in writing, have been
disclosed in writing as currently as is reasonably practicable.
E. ABSENCE OF UNDISCLOSED LIABILITIES
Each Party warrants and represents specifically that it has, and has no
reason to anticipate having, any material liabilities which have not been
disclosed to the other, in the financial statements or otherwise in writing.
F. LEGAL PROCEEDINGS
Each Party warrants and represents that there are no legal proceedings,
administrative or regulatory proceeding, pending or suspected, which have not
been fully disclosed in writing to the other.
G. NO BREACH OF OTHER AGREEMENTS
Each Party warrants and represents that this Agreement, and the faithful
performance of this Agreement, will not cause any breach of any other existing
agreement, or any covenant, consent decree, or undertaking by either, not
disclosed to the other.
H. CAPITAL STOCK
Each Party warrants and represents that the issued and outstanding shares
and membership interests and all shares and interests of capital stock and
capital memberships of each Party, is as detailed herein, that all such shares
and interests are in fact issued and outstanding, duly and validly issued, were
issued as and are fully paid and non-assessable shares and interests, and that,
other than as represented in writing, there are no other securities, membership
interests, options, warrants or rights outstanding, to acquire further shares or
membership interests of such Party, except as has been disclosed to the other
Party.
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I. BROKERS' OR FINDER'S FEES
Other than as described herein, each Party warrants and represents that it
is aware of no claims for brokers' fees, or finders' fees, or other commissions
or fees, by any person not disclosed to the other, which would become, if valid,
an obligation of either Party.
VI. INDEMNIFICATION
Both parties shall, and from and after the Closing Date, indemnify, defend
and hold harmless each person who is now, or has been at any time prior to the
date hereof or who becomes prior to the Closing Date, an officer or director of
either party (the "Indemnified Parties") against all losses, claims, damages,
costs, expenses (including reasonable attorneys' fees and expenses), liabilities
or judgments or amounts that are paid in settlement with the approval of the
indemnifying party of or in connection with any threatened or actual claim,
action, suit, proceeding or investigation based on or arising out of the fact
that such person is or was a director or officer of either party whether
pertaining to any matter existing or occurring at or prior to the Closing Date
and whether asserted or claimed prior to, or at or after, the Closing Date
("Indemnified Liabilities"), including all Indemnified Liabilities based on, or
arising out of, or pertaining to this Agreement or the transactions contemplated
hereby, in each case, to the full extent a corporation is permitted under the
California law to indemnify directors or officers.
Without limiting the foregoing, in the event any such claim, action, suit,
proceeding or investigation is brought against any Indemnified Parties (whether
arising before or after the Closing Date), (i) the Indemnified Parties may
retain counsel satisfactory to them and the Parties shall pay all fees and
expenses of such counsel for the Indemnified Parties promptly as statements
therefore are received; and (ii) each party shall use all reasonable efforts to
assist in the vigorous defense of any such matter, provided that each party
shall not be liable for any settlement effected without its prior written
consent. Any Indemnified Party wishing to claim indemnification under this
section, upon learning of any such claim, action, suit, proceeding or
investigation, shall notify the Parties (but the failure so to notify shall not
relieve a party from any liability which it may have under this section except
to the extent such failure prejudices such party). The Indemnified Parties as a
group may retain only one law firm to represent them with respect to each such
matter unless there is, under applicable standards of professional conduct, a
conflict on any significant issue between the positions of any two or more
Indemnified Parties. The Parties agree that all rights to indemnification,
including provisions relating to advances of expenses incurred in defense of any
action or suit, existing in favor of the Indemnified Parties with respect to
matters occurring through the Closing Date, shall survive the reverse
acquisition and shall continue in full force and effect for a period of not less
than seven years from the Closing Date; provided, however, that all rights to
indemnification in respect of any Indemnified Liabilities asserted or made
within such period shall continue until the disposition of such Indemnified
Liabilities.
The provisions of this section are intended to be for the benefit of, and
shall be enforceable by, each Indemnified Party, his or her heirs and his or her
personal representatives and shall be binding upon all successors and assigns of
both Parties.
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VII. DEFAULT, AMENDMENT AND WAIVER
A. DEFAULT
Upon a breach or default under this Agreement by any of the Parties
(following the cure period provided herein), the non-defaulting party shall have
all rights and remedies given hereunder or now or hereafter existing at law or
in equity or by statute or otherwise. Notwithstanding the foregoing, in the
event of a breach or default by any Party hereto in the observance or in the
timely performance of any of its obligations hereunder which is not waived by
the non-defaulting Party, such defaulting Party shall have the right to cure
such default within 15 days after receipt of notice in writing of such breach or
default.
B. WAIVER AND AMENDMENT
Any term, provision, covenant, representation, warranty, or condition of
this Agreement may be waived, but only by a written instrument signed by the
Party entitled to the benefits thereof. The failure or delay of any party at any
time or times to require performance of any provision hereof or to exercise its
rights with respect to any provision hereof shall in no manner operate as a
waiver of or affect such party's right at a later time to enforce the same. No
waiver by any Party of any condition, or of the breach of any term, provision,
covenant, representation, or warranty contained in this Agreement, in any one or
more instances, shall be deemed to be or construed as a further or continuing
waiver of any such condition or breach or waiver of any other condition or of
the breach of any other term, provision, covenant, representation, or warranty.
No modification or amendment of this Agreement shall be valid and binding unless
it be in writing and signed by all Parties hereto.
VIII. MISCELLANEOUS
A. EXPENSES
Whether or not the transactions contemplated hereby are consummated, each
of the Parties hereto shall bear all taxes of any nature (including, without
limitation, income, franchise, transfer, and sales taxes) and all fees and
expenses relating to or arising from its compliance with the various provisions
of this Agreement and such Party's covenants to be performed hereunder, and
except as otherwise specifically provided for herein, each of the Parties hereto
agrees to pay all of its own expenses (including, without limitation, attorneys
and accountants' fees, and printing expenses) incurred in connection with this
Agreement, the transactions contemplated hereby, the negotiations leading to the
same and the preparations made for carrying the same into effect, and all such
taxes, fees, and expenses of the Parties hereto shall be paid prior to Closing.
B. NOTICES
Any notice, request, instruction, or other document required by the terms
of this Agreement, or deemed by any of the Parties hereto to be desirable, to be
given to any other party hereto shall be in writing and shall be given by
facsimile, personal delivery, overnight delivery, or mailed by registered or
certified mail, postage prepaid, with return receipt requested, to the following
addresses:
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TO TREASURY: Treasury International, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
WITH COPY TO: Xxxxxxx X. Xxxxxxx, Esq.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
TO AMERICAN AND/OR American Sports Academy, LLC and/or
THE SHAREHOLDER: American Sports History, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (___) _______
WITH COPY TO: Xxxx X. Xxxxxx, Esq.
Cohne Xxxxxxxxx & Xxxxx, P.C.
525 E. 000 Xxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
The persons and addresses set forth above may be changed from time to time
by a notice sent as aforesaid. If notice is given by facsimile, personal
delivery, or overnight delivery in accordance with the provisions of this
Section, said notice shall be conclusively deemed given at the time of such
delivery. If notice is given by mail in accordance with the provisions of this
Section, such notice shall be conclusively deemed given seven days after deposit
thereof in the United States mail.
C. ENTIRE AGREEMENT
This Agreement, together with any schedules and exhibits hereto, sets forth
the entire agreement and understanding of the Parties hereto with respect to the
transactions contemplated hereby, and supersedes all prior agreements,
arrangements and understandings related to the subject matter hereof. No
understanding, promise, inducement, statement of intention, representation,
warranty, covenant, or condition, written or oral, express or implied, whether
by statute or otherwise, has been made by any party hereto which is not embodied
in this Agreement, or in the schedules or exhibits hereto or the written
statements, certificates, or other documents delivered pursuant hereto or in
connection with the transactions contemplated hereby, and no party hereto shall
be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant, or condition not so set forth.
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D. SURVIVIAL OF REPRESENTATIONS
All statements of fact (including financial statements) contained in the
schedules, the exhibits, the certificates, or any other instrument delivered by
or on behalf of the Parties hereto, or in connection with the transactions
contemplated hereby, shall be deemed representations and warranties by the
respective Party hereunder. All representations, warranties, agreements, and
covenants hereunder shall survive the Closing and remain effective for a period
of two-years following the Closing Date, regardless of any investigation or
audit at any time made by or on behalf of the Parties or of any information a
party may have in respect hereto. Consummation of the transactions contemplated
hereby shall not be deemed or construed to be a waiver of any right or remedy
possessed by any party hereto, notwithstanding that such party knew or should
have known at the time of Closing that such right or remedy existed.
E. INCORPORATION BY REFERENCE
The schedules, exhibits, and all documents (including, without limitation,
all financial statements) delivered as part hereof or incident hereto are
incorporated as a part of this Agreement by reference.
F. REMEDIES CUMULATIVE
No remedy herein conferred upon the Parties is intended to be exclusive of
any other remedy and each and every such remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or otherwise.
G. EXECUTION OF ADDITIONAL DOCUMENTS
Each Party hereto shall make, execute, acknowledge, and deliver such other
instruments and documents, and take all such other actions as may be reasonably
required in order to effectuate the purposes of this Agreement and to consummate
the transactions contemplated hereby.
H. GOVERNING LAW
This Agreement has been negotiated in the State of California and shall be
construed and enforced in accordance with the laws of such state.
I. FORUM
Each of the Parties hereto agrees that any action or suit which may be
brought by any party hereto against any other party hereto in connection with
this Agreement or the transactions contemplated hereby may be brought only in a
federal or state court in Los Angeles County, California.
J. PROFESSIONAL FEES
In the event any Party hereto shall commence legal proceedings against the
other to enforce the terms hereof, or to declare rights hereunder, as the result
of a breach of any covenant or condition of this Agreement, the prevailing party
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in any such proceeding shall be entitled to recover from the losing party its
costs of suit, including reasonable attorneys' fees, accountants' fees, and
experts' fees.
K. BINDING EFFECT AND ASSIGNMENT
This Agreement shall inure to the benefit of and be binding upon the
Parties hereto and their respective heirs, executors, administrators, legal
representatives, and assigns.
L. COUNTERPARTS; FACSIMILE SIGNATURES
This Agreement may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. The Parties agree that facsimile
signatures of this Agreement shall be deemed a valid and binding execution of
this Agreement.
This PLAN OF REORGANIZATION AND ACQUISITION is executed on behalf of each
Party by its duly authorized representatives, and attested to, pursuant to the
laws of its respective place of incorporation and in accordance with its
constituent documents as of the date first written above.
Treasury International, Inc.,
a Delaware corporation
BY: /s/ Xxxx Xxxxx
ITS: President
AMERICAN SPORTS ACADEMY, LLC AMERICAN SPORTS HISTORY, INC.
BY: /s/ Xxxxxx Xxxxxxxxxxxx BY: /s/ Xxxxxx Xxxxxxxxxxxx
ITS: President ITS: President
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