AGREEMENT OF ASSET ACQUISITION AND
CORPORATE REORGANIZATION
This Agreement of Asset Acquisition and Corporate Reorganization (the
"Agreement") dated June 28, 1997, by and between Starlog Franchise Corporation,
a New Jersey corporation with its principal offices located at 000 Xxxxxxxx
Xxxxxx, Xxxxx, Xxx Xxxxxx 00000, ("Transferee") and Goal Post Distributing,
Inc., a Florida corporation with its principal offices located at 00000-0 X.
Xxxxxxxxxxxx Xxx. Xxxxx, XX 00000, ("Transferor") and Xxxxx X. Xxxxxx Kelen,
("Owner").
RECITALS
WHEREAS, Transferee desires to acquire all of the assets of Transferor,
all as more particularly set forth herein in a transaction intended to qualify
as a reorganization pursuant to Section 368(a)(1)(C) of the Internal Revenue
Code of 1986, as amended (the "Acquisition"); and
WHEREAS, the Acquisition shall be consummated pursuant to and in
accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein, the parties agree as follows:
SECTION 1. Transfer and Acquisition of the Assets and Assignment of Agreements
of Transferor.
1.1 Acquisition of Assets. Subject to the terms and conditions of this
Agreement, Transferor agrees to sell, convey, transfer, assign and deliver
to Transferee, and Transferee agrees to transfer all of Transferor's
right, title and interest in its assets, real, personal and mixed,
tangible and intangible, employed in the operations of Transferor,
including, without limitation, the following items (collectively, the
"Assets") but excluding the items listed in Section 1.2 below: (i) all
equipment, vehicles, furniture and furnishings, including, without
limitation, those taken into consideration in any depreciation schedule of
Transferor; (ii) any and all recorded or unrecorded leasehold interests to
the real property location(s) used in connection with the Business
together with all improvements and fixtures located thereon or therein;
(iii) all usable supplied, forms, brochures, and inventory; (iv) any
intangible assets, goodwill, and intellectual property, including any
service and/or trademarks or names and logos (including specifically the
name "Goal Post Distributing, Inc."); (v) copies of all employment
applications and other personnel records of key employees as selected by
Transferee; (vi) all interests in commitments, contracts, leases, and
agreements relating to the Business and Assets; (vii) all files, lists,
and records relating to all clients, customers, accounts, prospects and
referral sources of Transferor; (viii) rights to telephone and fax numbers
used by Transferor; (ix) all computer, other data processing equipment,
and related software; and (x) all prepaid expenses, and miscellaneous
deposits of Transferor. Transferor shall convey good and marketable title
to the Assets and all parts thereof to Transferee free
1
and clear of all liabilities, claims, assessments, security interests
liens, restrictions and encumbrances, except as expressly provided herein
to the contrary.
1.2 Excluded Assets. The Assets shall not include and Transferee shall not
acquire from Transferor the following items ("Excluded Assets"): cash and
cash equivalents.
1.3 Excluded Liabilities. Except as expressly provided in the assignment and
assumption of contracts referenced in paragraph 2.2 and 2.3, Transferee
shall not be obligated to pay or assume, and none of the Assets shall be
or become liable for or subject to, any liability of Transferor,
including, without limitation, the following, whether fixed or contingent,
recorded or unrecorded, known or unknown (collectively, the "Excluded
Liabilities"): (i) long, or short term indebtedness, liabilities and other
obligations or guarantees of Transferor; (ii) federal, state or local tax
liabilities or liabilities of Transferor relating to the operations of
Transferor for the period prior to the Closing Date or resulting from the
consummation of the transactions contemplated herein, including, without
limitation, any income or acquisitions, tax, any franchise tax, and any
other such tax; (iii) obligation or liability for any and all claims by or
on behalf of any employee of Transferor relating to periods prior to
Closing; (iv) any liability, obligation, interest, sanctions, or penalties
arising out of or in connection with any claim or violation under the
Employee Retirement Income Security Act of 1974; and (v) any liability or
obligation arising out of or in connection with any act or omission
relating to the ownership or operations of the Business by Transferor or
the Assets which occurred prior to Closing, including any breach by
Transferor at any time of any contract or commitment.
1.4 Transfer Price. The total transfer price payable by Transferee to
Transferor for the Assets ("Transfer Price"), shall be 4,300,000
previously unissued shares of the common stock of Transferee (the
"Shares") valued at $0.15 per share, which value is hereby specifically
agreed to by Transferor and Transferee. As an accommodation to Owner,
Transferee shall issue such shares in the name of Owner. The Certificate
or Certificates evidencing such shares shall bear the following legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended and may not
be sold, transferred, pledged, hypothecated or otherwise disposed of
in the absence of (i) an effective registration statement for such
securities under said act or (ii) an opinion of company counsel that
such registration is not required.
1.5 Additional Restrictions on Transfer. Transferor agrees to execute a
lock-up agreement upon terms customary in the industry which restricts the
transfer of the securities received from Transferor hereunder on the same
terms and conditions as agreed to by Hope Associates, L.L.C. and its
Members, or as agreed by any control person, affiliate or other group
agreeing to a lock-up to facilitate financing or any public offering of
Transferor's common stock provided that such lock-up shall not exceed
twelve (12) mouths in duration. Transferor further agrees, that an
additional appropriate legend shall be placed on the securities and a
transfer stop-order restricting transfer of the securities may be imposed
with respect to all securities
2
which are subject to the provisions of this paragraph. Transferee shall
remove such legend and stop-order upon the expiration of such lock-up.
Transferor agrees that damages for a breach of this paragraph would be
inadequate and that Transferee, Transferor and Owner would be entitled to
injunctive relief.
1.6 Instruments of Conveyance and Transfer. At the Closing, Transferor shall
deliver to Transferee such deeds, bills of acquisition, endorsements,
assignments, and other good and sufficient instruments of transfer,
conveyance, and assignment satisfactory to Transferee and its counsel as
shall be effective to vest in and warrant to Transferee good and
marketable title to the Assets, free and clear of all mortgages, security
agreements, pledges, charges, claims, liens, and encumbrances and to
transfer to Transferee all of Transferor's rights and obligations under
the Assumed Contracts. Simultaneously with such delivery, Transferor shall
take all steps as may be required to put Transferee in actual possession
and operating control of the Assets and the Business.
1.7 Further Assurances. Transferor shall from time to time at the request of
Transferee and without further consideration, execute and deliver such
instruments of transfer, conveyance, and assignment in addition to those
delivered pursuant to Section 1.5 and take such other action as Transferee
may reasonable request to more effectively transfer, convey, and assign to
and vest in Transferee, and to put Transferee in possession of, all or any
portion of the Assets. In the event that any consent is required to
transfer any contracts to be assumed by Transferee has not been received
by the Closing, and Transferee waives such nonreceipt and proceeds to
Closing, Transferor shall be obligated without further consideration to
use its best efforts to secure for the Transferee the benefits of such
contracts.
1.8 Affirmative Statement of Intent to Qualify Acquisition Pursuant to Section
368(a)(l)(C). The parties herein agree that the acquisition is intended to
qualify as a reorganization pursuant to Section 368(a)(l)(C) of the
Internal Revenue Code of 1986, as amended, and shall be treated as such
for all tax and financial purposes by each of the parties, and neither
party, either directly or indirectly, shall take any position or action
inconsistent with such intent. Further, the parties agree that either
party shall execute any additional documents required by the Internal
Revenue Service in order to document or preserve the intended tax
treatment of the Aquisition. Transferor shall make available to
Transferee any books, records or other documentation maintained by it
which is required by Transferee to properly account for the basis of the
Assets subsequent to the Acquisition.
SECTION 2. Closing.
2.1 Time and Place. Subject to the terms and conditions of this Agreement, the
closing (the "Closing") shall take place at 10:00 a.m., on June 29, 1997,
at the offices of Xxxxx & Xxxxxx, P.A. 000 X. Xxxxxxx Xxxx., Xxxxx 0000,
Xxxxx, XX 00000, or at such other time, date, and/or place as the parties
may mutually agree. The date on which the Closing occurs is referred to as
the "Closing Date." In the event actual closing should take place at a
later date, the parties agree Closing shall be effective as of June 29,
1997.
3
2.2 Actions of Transferor at Closing. At Closing and unless otherwise waived
in writing by Transferee, Transferor shall deliver to Transferee the
following:
(i) Assignments executed by Transferor assigning to Transferee the
leasehold title to any leased real property, and evidencing the
consents of the respective landlords thereto;
(ii) A General Xxxx of Acquisition and Agreement, fully executed by
Transferor, conveying to Transferee good and marketable title to all
tangible and intangible assets which are a part of the Assets, free
and clear of all liabilities, claims, liens, security interests and
restrictions;
(iii) An Assignment and Assumption of Contracts, executed by Transferor,
conveying to Transferee, Transferor's interests in such Contracts;
(iv) Copy of resolutions duly adopted by the board of directors and the
shareholders of Transferor authorizing and approving Transferor's
execution, delivery and performance of this Agreement and the
transactions contemplated hereby, certified as true and of full
force as of Closing, by an appropriate officer of Transferor;
(v) Certificate of a duly authorized officer of Transferor certifying
that each covenant and agreement of Transferor to be performed prior
to Closing pursuant to this Agreement has been performed in all
material respects;
(vi) Certificate of a duly authorized officer of Transferor certifying
that each representation and warranty of Transferor is true and
complete as of the date of this Agreement and as of the Closing
date;
(vii) Certificate of incumbency for the officer(s) of Transferor executing
this Agreement or making certifications for Closing dated as of
Closing;
(viii)Certificate of existence and good standing of Transferor from the
State of Florida, dated the most recent practical date prior to
Closing; and
(ix) Such other instruments and documents required under this Agreement
or as Transferee reasonably deems necessary to effect the
transactions contemplated hereby and to otherwise consummate the
transactions described herein.
2.3 Actions of Transferee at Closing. At the closing and unless otherwise
waived in writing by Transferor, Transferee shall deliver to Transferor
the following:
(i) An Assignment and Assumption of Contracts executed by Transferee,
pursuant to which Transferee shall assume the future payment and
performance of the Contracts as herein provided;
(ii) Copy of the resolutions duly adopted by the board of directors of
Transferee, authorizing and approving Transferee's execution,
delivery and performance of this Agreement and the transactions
contemplated hereby, certified as true and in full force as of
Closing by an appropriate officer of Transferee;
(iii) Certificate of a duly authorized officer of Transferee certifying
that each covenant and agreement of Transferee to be performed prior
to Closing pursuant to this Agreement has been performed in all
material respects;
4
(iv) Certificate of a duly authorized officer of Transferee certifying
that each representation and warranty of Transferee as set forth
herein is true and complete as of the date of the Agreement and as
of the Closing Date;
(v) Delivery of Transferee's common stock certificate in the name of
Owner evidencing transfer of 4,300,000 shares of Transferee's
previously unissued common stock. In the event that a stock
certificate countersigned by Transferee's transfer agent is not
available at the closing, Transferee shall deliver to Transferor a
stock certificate without such countersignature and shall as soon as
practicable but not later than 30 days after the Closing, deliver to
Owner a certificate bearing such countersignature in substitution
for the certificates delivered at Closing; and
(vi) Certificate of Good Standing of Transferee from the State of New
Jersey
SECTION 3. Representations and Warranties of Transferor and Owner.
3.1 Transferor's and Owner's Representations and Warranties. Transferor and
Owner jointly and severally represent and warrant to Transferee as
follows:
3.1.1 Ownership. Owner is the legal and beneficial owner of 100% of the
issued and outstanding voting securities of Transferor.
3.1.2 Transferors Representations and Warranties. Transferor and Owner
have received Transferee's Forms 10-K and l0-Q on file with the
Securities and Exchange Commission and such further information as
they have desired to review and inspect, that they have met with
management of Transferee, and are fully familiar with all such
information, financial or otherwise, that they deem necessary or
appropriate to acquire the stock of Transferee pursuant to this
Agreement.
3.1.3 Financial Condition and Statements.
(a) For the 24 month period ending June 29, 1997, the gross
revenues generated by Transferor is greater or equal to
$6,993,857.00 and the pre-tax income related thereto is
greater or equal to $603,178.00.
(b) Transferor has delivered to Transferee copies of the following
financia1 statements relating to Transferor's business (the
"Financial Statements"): (i) unaudited Income Statement of
Transferor for the 12 month period ended on and Balance Sheet
as of June 29, 1997 (the "Financial Statement Date"); (ii)
unaudited Balance Sheet as of June 29, 1997, attached hereto
as Schedule 3.1.3; (iii) a depreciation schedule and a current
list of fixed assets used or useful in connection with
Transferor and attached to Schedule 3.13; and (iv) unaudited
Income Statement of Transferor for the fiscal years ended on
December 31, 1994, 1995, 1996 and for the last 6 months. Such
Financial Statements have been prepared on an accrual basis,
in conformance with generally accepted accounting principles
and practices consistently applied, and present fairly the
results of the operations of Transferor for the periods
indicated thereon.
5
(c) Other than disclosed in the Financial Statements identified in
Section 3.1.3, Transferor has no liabilities which are of the
kind and character required to be disclosed in financial
statements prepared in accordance with generally accepted
accounting principles and which are incurred other than in the
ordinary course of business, whether accrued, absolute,
contingent or otherwise.
3.1.4 Organization and Good Standing. Transferor is duly qualified as a
Florida corporation and is in good standing in any jurisdiction in
which the conduct of its business or the ownership of its assets
requires such qualification except where such non-qualification has
not had a material adverse effect on Transferor.
Transferor has no subsidiaries.
3.1.5 Authorization; Validity. The execution, delivery, and performance of
this Agreement by Transferor has been duly and validly authorized by
all requisite corporate action. This Agreement has been duly and
validly executed and delivered by Transferor, and is the legal,
valid, and binding obligation of Transferor, enforceable in
accordance with its terms, except as limited by bankruptcy,
insolvency, moratorium, reorganization, and other laws of general
application affecting the enforcement of creditors' rights and by
the availability of equitable remedies.
3.1.6 Consents, etc. Other than as set forth on Schedule 3.1.5, no
approval, consent, waiver, or authorization of or filing or
registration with any governmental authority or third party is
required for the execution, delivery, or performance by Transferor
of the transactions contemplated by this Agreement
3.1.7 Violations. The execution, delivery, or performance of this
Agreement does not and will not (i) with or without the giving of
notice or the passage of time, or both, constitute a default, result
in a breach of, result in the termination, of, result in the
acceleration of performance of, require any consent, approval, or
waiver (other than those identified on Schedule 3.1.5), or result in
the imposition of any lien or other encumbrance upon any property or
assets of Transferor, under any agreement, lease, or other
instrument to which Transferor is a party or by which any of the
property or assets of Transferor is bound; (ii) violate any permit
license, or approval required by Transferor to own its Assets and
operate its business; (iii) violate any law, statute, or regulation
or any judgment, order, ruling, or other decision of any
governmental authority, court, or arbitrator; or (iv) violate any
provision of Transferor's Articles of Incorporation or Bylaws.
3.2 Survival of Representations and Warranties. Each of the representations
and warranties in Section 3.1 and Section 4 shall be deemed renewed and
made again by Transferor at the Closing as if made as at that time, and
shall survive the Closing until the expiration of all applicable statute
of limitation periods.
6
SECTION 4. Representations and Warranties of Transferee.
As of the date hereof and as of the Closing Date, Transferee represents
and warrants to Transferor the following:
4.1 Corporate Capacity. Transferee is a for-profit corporation duly organized
and validly existing in good standing under the laws of the State of New
Jersey. Transferee has the requisite power and authority to enter into
this Agreement, perform its obligations hereunder and to conduct its
business as now being conducted.
4.2 Corporate Powers; Consents; Absence of Conflicts With Other
Agreements, Etc. The execution, delivery and performance of this Agreement
by Transferee and all other agreements referenced herein or ancillary
hereto to which Transferee is a party and the consummation of the
transactions contemplated herein by Transferee: (i) are within
Transferee's authority and powers, are not in contravention of law or of
the terms of Transferee's Articles of Incorporation, By-laws or any
amendments thereto and have been duly authorized by all appropriate
corporate action; (ii) do not require any approval or consent of, or
filing with, any governmental agency or authority bearing on the validity
of this Agreement which is required by law or the regulations of any such
agency or authority; (iii) will neither conflict with nor result in any
material breach or contravention of, or the creation of any lien under,
any indenture, agreement, lease, instrument or understanding to which
Transferee is a party or by which Transferee is bound; (iv) will not
violate any statue, law, rule or regulation of any governmental authority
to which Transferee may be subject; and (v) will not violate any judgment,
order or decree of any court or governmental authority to which Transferee
may be subject.
4.3 Binding Agreement. This Agreement and all other agreements to which
Transferee will become a party hereunder are and will constitute the valid
and legally binding obligations of Transferee and are and will be
enforceable against Transferee in accordance with the respective terms
hereof and thereof, except as enforceability against Transferee may be
restricted, limited or delayed by applicable bankruptcy or other laws
affecting creditors' rights generally and except as enforceability may be
subject to general principles of equity.
4.4 Full Disclosure. The representations and warranties of Transferee herein
do not and will not include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements made and
to be made not misleading.
4.5 Capitalization. The authorized equity securities of Transferee consists of
40,000,000 shares of common stock, par value $.001 per share, of which
19,937,636 shares are issued and outstanding. The Shares are duly
authorized and validly issued and are fully paid and non-assessable. No
person holds any option or right to acquire equity securities of
Transferee.
4.6 Financial Information. As of December 28, 1996, Transferee's (i) total
liabilities are $2,629,536.00, (ii) cash balances are $434,779.00, (iii)
receivables arc $355,360.00 and
7
inventory (which is salable in the ordinary course of its business) is
$440,098.00, which amounts are calculated on a basis consistent with
Transferee's audited financial statements.
4.7 No Material Adverse Change. Since the date of Transferee's last audited
balance sheet, which has been delivered to Transferor, there has not been
any material adverse change in the business, operations, properties,
prospects, assets, or condition of the Company, and no event has occurred
or circumstance exists that may result in such a material change.
SECTION 5. Covenants of the Parties.
5.1 Except as may otherwise be consented to or approved in writing by
Transferee, Transferor agrees that from the date of this Agreement and
until the Closing:
5.1.l Conduct Pending Closing. (i) The business of Transferor shall be
conducted only in the ordinary course consistent with past
practices; (ii) the Transferor shall not declare any dividends,
enter into any mergers, and shall not engage in any borrowing, or
hiring of new personnel.
5.1.2 Access to Records. Transferor shall provide Transferee and its
representatives access to all records of Transferor that they may
reasonable request and provide access to the properties of
Transferor.
5.1.3 Solicitation. Transferor agrees that it will not solicit, consider,
or negotiate any offers to acquire the share or assets of
Transferor, or to provide any information or to make available any
management personnel to third parties for such purposes.
5.1.4 Obligations of Transferor to Its Creditors. (i) Transferor shall
furnish Transferee, upon execution of this Agreement, with a list of
its existing creditors. This list shall be signed an sworn to or
affirmed by Transferor and shall contain the names and business
addresses of all of Transferor's creditors, with the amounts, when
known, and the names of all persons who are known to Transferor to
assert claims against it, even though such claims are disputed; (ii)
Transferor shall pay all undisputed claims and settle or litigate
all disputed claims and hold Transferee harmless from all of
Transferee's creditors.
5.1.5 Non-Competition and Non-Solicitation. Transferor and Owner shall
enter into a non-competition agreement with Transferee in the form
attached as Exhibit 2.
5.1.6 Employment Agreement. Transferee and Owner shall enter into an
Employment Agreement in the form attached as Exhibit 2.
5.1.7 Enforcement of Agreements. For a period of twelve (12) months
following the Closing Date, Transferor shall , upon Transferee's
request, cooperate with Transferee to provide for Transferee the
benefits under any contract or agreement, including any
8
agreement with employees, including, without limitation, enforcement
of any and all rights against the other party or parties.
5.1.8 Proration of Taxes and Other Amounts. All applicable taxes and
rental payments under any contract, assumed by Transferee, and other
expenses shall be prorated as of Closing.
5.1.9 Employee Payments. Transferor shall pay all employee compensation,
benefits, vacations, sick time, and all other payments due to its
employees for the period up to and including the Closing Date.
SECTION 6 Conditions Precedent to Obligations of Transferee.
6.1 Conditions Precedent. Unless, at the Closing, each of the following
conditions is either satisfied or waived by Transferee in writing,
Transferee shall not be obligated to effect the transactions contemplated
by this Agreement:
6.1.1.Representations and Warranties. The representations and warranties
of Transferor in this Agreement are true and correct at the date of
this Agreement and shall be true and correct as of the Closing as if
each were made again at that time.
6.1.2.Performance of Covenants. Transferor shall have performed and
complied in all respects with the covenants and agreements required
by this Agreement.
6.1.3.Items to be Delivered at Closing. Transferor shall have tendered
for delivery to Transferee the following:
(i) Consents, etc. Consents for each item listed on Schedule
3.1.5.
(ii) Good Standing Certificate. A certificate of the Florida
Department of State, dated within ten days of the Closing,
showing that Transferor is in good standing.
(iii) Corporate Action. A certified copy of the corporate action of
Transferor authorizing and approving this Agreement and the
transactions contemplated by it.
(iv) Certificate of Incumbency. A certificate of incumbency duly
executed by Transferor's Secretary or assistant Secretary.
(v) Transfer Documents. Deeds, bills of acquisition, assignments,
consents to assignments, and other instruments of transfer and
consent necessary to transfer to Transferee good and
marketable title in and to all of the Assets and Assumed
Contracts, free and clear of all liens, except as set forth in
this Agreement.
6.1.4.Proceedings and Instruments Satisfactory. All proceedings, corporate
or other, to be taken in connection with the transactions
contemplated by this Agreement, and all
9
documents incident thereto, shall be satisfactory in form and
substance to Transferee and Transferee's counsel, whose approval
shall not be unreasonable withheld.
6.1.5.Certificate. There shall be delivered to Transferee an officer's
certificate, signed by Transferor, to the effect that all of the
representations and warranties of Transferor set forth in this
Agreement are true and complete in all material respects as of the
Closing Date, and that Transferor has complied in all material
respects with its covenants and agreements required to be complied
with by the Closing.
0.0.0.Xx Adverse Change. There shall not have been a material adverse
change in the financial condition of Transferor or the Business,
whether or not covered by insurance; nor shall any lawsuit be
pending that seeks to set aside the Agreement or the transactions
contemplated by it.
SECTION 7. Conditions Precedent to Obligations of Transferor.
7.1 Conditions Precedent. Unless, at the Closing, each of the following
conditions is either satisfied or waived by Transferor in writing,
Transferor shall not be obligated to effect the transactions contemplated
by this Agreement.
7.1.1.Representations and Warranties. The representations and warranties
of Transferee in this Agreement are true and correct at the date of
this Agreement and as of the Closing as if each were made again at
that time.
7.1.2.Items to be Delivered at Closing. Transferee shall have tendered
for delivery to Transferor the following:
(i) Good Standing Certificate. A Certificate of the New Jersey
Department of State showing that Transferee is in good
standing.
(ii) Corporate Action. A certified copy of the corporate action of
Transferee authorizing and approving this Agreement and the
transactions contemplated by it.
(iii) Certificate of Incumbency. A certificate of incumbency duly
executed by Transferee's Secretary or Assistant Secretary.
(iv) Stock Certificate. The stock certificate required under
Section 2.3 (v).
7.1.3.Performance of Covenants. Transferee shall have performed and
complied in all respects with the covenants and agreements
required by this Agreement.
SECTION 8. NOTICES.
Any notice, request, demand, or communication required or permitted to be
given to any provision of this Agreement shall be deemed to have been delivered,
given, and received for all purposes if written and (i) if delivered personally,
by facsimile, or by courier or delivery service, at the time of such delivery or
(ii) if directed by registered or certified United States mail,
10
postage and charges prepaid, addressed to the intended recipient, at the address
specified below, two business days after such delivery to the United States
Postal Service.
If to Transferee: Starlog Franchise Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxx Xxxxxx 00000
With a copy to: Xxxx X. Xxxxx, Esq.
Xxxxx & Xxxxxx, P.A.
000 X. Xxxxxxx Xxxx., Xxxxx 0000
Xxxxx, XX 00000
If to Transferor: Goal Post Distributing Inc.
00000-0 X. Xxxxxxxxxxxx Xxx.
Xxxxx, XX 00000
If to Owner: Xxxxx X. Xxxxxx Kelen
00000-0 X. Xxxxxxxxxxxx Xxx.
Xxxxx, XX 00000
With a copy to: Xxxxxx X. Xxxxxxxx, Esq.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Any party may change the address to which notices are to be mailed by giving
notice as provided herein to all other parties.
SECTION 9. MISCELLANEOUS.
9.1 Entire Agreement. This Agreement, the Exhibits, and the Schedules, contain
all of the terms and conditions agreed upon by the parties with reference
to the subject matter and superseded any and all previous agreements,
representations, and communications between the parties, whether written
or oral. This Agreement, including its Exhibits and Schedules, may not be
modified or changed except by written instrument signed by all of the
parties, or their respective successors or assigns.
9.2 Assignment. This Agreement shall not be assigned or assignable by
Transferor or Transferee without the express written consent of the other
party. This Agreement shall inure to the benefit of and be binding upon
the parties and their respective successors and assigns.
9.3 Captions. All section, schedule, and exhibit headings are inserted for the
convenience of the parties and shall not he used in any way to modify,
limit, construe, or otherwise affect this Agreement.
11
9.4 Counterparts; Facsimile Signatures. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument. Facsimile
signatures shall be of the same legal effect as if signed originally.
9.5 Waiver. Each of the parties may, by written notice to the other, (i)
extend the time for the performance of any of the obligations or other
actions of the other party; (ii) waive any inaccuracies in the
representations or warranties of the other party contained in this
Agreement or in any document delivered pursuant to this Agreement; (iii)
waive compliance with any of the covenants of the other party contained in
this Agreement; or (iv) waive, in whole or in part, performance of any of
the obligations of the other party. No action taken pursuant to this
Agreement, including, but not limited to, the consummation of the Closing
or any knowledge of or investigation by or on behalf of any party, shall
be deemed to constitute a waiver by the party taking such action,
possessing such knowledge, or performing such investigation or compliance
with the representations, warranties, covenants, and agreements contained
herein. The waiver by any party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
or similar breach.
9.6 Controlling Law. This Agreement has been entered into the State of Florida
and shall be governed by and construed and enforced in accordance with the
laws of Florida.
9.7 Gender. Whenever in this Agreement the context so requires, references to
the masculine shall be deemed to include the feminine and the neuter,
references to the neuter shall be deemed to include the masculine and the
feminine, and references to the plural shall be deemed to include the
singular and the singular to include the plural.
9.8 Further Assurances. Each of the parties shall use all reasonable efforts
to bring about the transactions contemplated by this Agreement as soon as
practicable, including the execution and delivery of all instruments,
assignments, and assurances, and shall take or cause to be taken such
reasonable further or other actions necessary or desirable in order to
carry out the intent and purposes of this Agreement.
9.9 Attorneys' Fees. In the event a lawsuit is brought to enforce or interpret
any part of this Agreement or the rights or obligations of any party to
this Agreement, the prevailing party shall be entitled to recover such
party's costs of suit and reasonable attorney's fees, through all appeals.
9.10 References to Agreement. The words "hereof," "herein," "hereunder," and
other similar compounds of the word "here" shall mean and refer to the
entire Agreement and not to any particular section, article, provision,
annex, exhibit, schedule, or paragraph unless so required by the context.
9.11 Schedule and Exhibits. Schedules and Exhibits to this Agreement (and any
references to any part or parts of them) shall, in each instance, include
the Schedules or Exhibits (as the case may be) attached hereto as well as
any amendments thereto (in each such case). All
12
such Schedules and Exhibits shall be deemed an integral part hereof and
are incorporated herein by reference.
9.12 Venue. Any litigation arising hereunder shall be instituted only in
Hillsborough County, Florida, the place where this Agreement was
executed. All parties agree that venue shall be proper in that county for
all such legal or equitable proceedings.
9.13 Severability. Each section, subsection and lesser section of this
Agreement constitutes a separate and distinct undertaking, covenant,
and/or provision. In the event that any provision of this Agreement shall
finally be determined to be unlawful, such provision shall be deemed
severed from this Agreement, but every other provision of this Agreement
shall remain in full force and effect.
9.14 Rights in Third Parties. Except as otherwise specifically provided,
nothing expressed or implied in this Agreement is intended, or shall be
construed, to confer upon or give any person, firm, or corporation, other
than the parties and their respective stockholders or shareholders, any
rights or remedies under or by reason of this Agreement.
9.15 Expenses. Each party shall pay its own expenses in connection with the
negotiation and consummation of the transactions contemplated by this
Agreement.
IN WITNESS WHEREOF, then parties have executed this Agreement as of the
date first written above.
Starlog Franchise Corporation
a New Jersey corporation
/s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
---------------------------- ------------------------------------
Witness Xxxx Xxxxxxxxxx, President
Goal Post Distributing Inc.
a Florida corporation
/s/ Xxxxx X. Xxxxxx Kelen By: /s/ Xxxxx X. Xxxxxx Kelen
---------------------------- ------------------------------------
Witness Xxxxx X. Xxxxxx Kelen, President
/s/ Xxxxx X. Xxxxxx Kelen By: /s/ Xxxxx X. Xxxxxx Kelen
---------------------------- ------------------------------------
Witness Xxxxx X. Xxxxxx Kelen, Owner
13
SCHEDULE 3.1.5
Approval of the sole shareholder of Transferor as reflected in the Joint Action
by Written Consent of the Sole Shareholder of Transferor dated July 2, 1997.
Approval of Transferor's landlord.
XXXX OF ACQUISITION AND AGREEMENT
For valuable consideration, GOAL POST DISTRIBUTING, INC., a Florida
corporation ("Transferor") by this instrument does grant, assign, transfer, set
over and convey to STARLOG FRANCHISE CORPORATION ("Transferee"), a New Jersey
corporation, all of Transferee's right, title and interest in the following
personal property:
All of Transferor's assets, real, personal and mixed, tangible and
intangible, employed in the operations of Transferor, including, without
limitation, the following items (collectively, the "Assets") but excluding the
items listed below: (i) all equipment, vehicles, furniture and furnishings,
including, without limitation, those taken into consideration in any
depreciation schedule of Transferor; (ii) any and all recorded or unrecorded
leasehold interests to the real property location(s) used in connection with the
business together with all improvements and fixtures located thereon or therein;
(iii) all usable supplies, forms, brochures, and inventory; (iv) any intangible
assets, goodwill, and intellectual property, including any service and/or
trademarks or names and logos (including specifically the name "Goal Post
Distributing, Inc."); (v) copies of all employment applications and other
personnel records of key employees as selected by Transferee; (vi) all interests
in commitments, contracts, leases, and agreements relating to Transferor's
business and Assets; (vii) all files, lists and records relating to all clients,
customers, accounts, prospects and referral sources of Transferor; (viii) rights
to telephone and fax numbers used by Transferor; (ix) all computers, other data
processing equipment, and related software; and (x) all prepaid expenses, and
miscellaneous deposits of Transferor.
The Assets shall not include and Transferee shall not acquire from
Transferor cash and cash equivalents of the Transferor.
This transaction intended to qualify as a reorganization pursuant to
Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as amended (the
"Acquisition").
IN WITNESS WHEREOF, the Transferor has executed this instrument as of the
29th day of June, 1997.
GOAL POST DISTRIBUTING, INC.
a Florida corporation
By: /s/ Xxxxx X. Xxxxxx Kelen
------------------------------------
Xxxxx X. Xxxxxx Kelen, President
FIRST ADDENDUM TO PURCHASE OF CORPORATION THROUGH STOCK PURCHASES AND SIGNATURE
PAGE OF XXXX XXXXXXXXX
1. Xxxx Xxxxxxxxx warrants and represents that he is the owner, free and clear
of all liens, pledges and encumbrances, of 100 shares of KCK Corporation stock.
Xxxx Xxxxxxxxx makes no further representations or warranties with regard to his
stock or KCK Corporation in connection with the sale of such stock to Starlog
Franchise Corporation.
2. Xxxx Xxxxxxxxx will receive from Starlog in exchange for his stock Starlog
stock warrants as follows:
a. 50,000 warrants at $0.50 per share to be exercised prior to
September 30, 1999; and
b. 50,000 warrants at $0.25 per share if exercised prior to September
30, 1998; or at
$0.40 per share is exercised prior to September 30, 1999.
3. Xxxxxx X. Xxxx will receive from Starlog the following warrants:
a. 50,000 warrants at $0.50 per share to be exercised prior to
September 30, 1999; and
b. 150,000 warrants at $0.25 per share if exercised prior to September
30, 1998; or at
$0.40 per share is exercised prior to September 30, 1999.
In Witness Whereof, this First Addendum is executed as of October 1, 1997.
/s/ Xxxx Xxxxxxxxx
----------------------------------
XXXX XXXXXXXXX
/s/ Xxxxxx X. Xxxx
----------------------------------
XXXXXX X. XXXX
STARLOG FRANCHISE CORPORATION
/s/ Xxxx Xxxxxxxxxx
----------------------------------
BY: AUTHORIZED OFFICER
