Exhibit 10.2
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of February 27, 2004 by and between
MILLENNIA TEA MASTERS, INC., a company incorporated under the laws of the State
of Texas, having an office and address at 0000 Xxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxx, XX 00000 (the "Company"), and XXXXXX XXXXXXX, an individual having an
address at 00000 X.X. 00xx Xxxxxx, Xx. Xxxxxxxxxx, XX 00000 (the "Purchaser").
WITNESSETH
WHEREAS, Xxxxxxx approached the Company's Board of Directors
independently and without solicitation on the part of the Company or anyone
connected with the Company with an offer to purchase control of the Company, and
WHEREAS, certain representations were made by Purchaser which induced
the Company's Board of Directors to sell a controlling interest to Purchaser by
the issuance of newly issued shares in order to enhance shareholder value, and
WHEREAS, based upon said representations the Company's Board of
Directors desire to issue to Purchaser 12,500,000 shares of the Company's common
stock (the "Shares"), representing approximately 88.2% of the Company's issued
and outstanding shares of the common stock of the Company, on the terms and
conditions set forth in this Stock Purchase Agreement (the "Agreement"), and
WHEREAS, Purchaser desires to buy the Shares on the terms and
conditions set forth herein, and
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows.
ARTICLE I
SALE AND PURCHASE OF THE SHARES
1.1 Sale of the Shares. Upon the execution of this Agreement, subject
to the terms and conditions herein set forth, on the basis of the
representations, warranties and agreements herein contained, the Company will
issue and deliver the Shares to Purchaser who shall purchase the Shares from the
Company
1.2 The Closing. The purchase of the Shares shall take place at the
office of the Seller in Frisco, Texas or such other place as Purchaser and
Seller may mutually agree on February 27, 2004. Such date is herein referred to
as the "Closing Date".
1.3 Instruments of Conveyance and Transfer. At the Closing Date, Seller
shall deliver a certificate or certificates representing the Shares to Purchaser
duly endorsed by the Seller to the Purchaser, in form and substance satisfactory
to Purchaser ("Certificates"), as shall be effective to vest in Purchaser all
right, title and interest in and to all of the Shares.
1.4 Consideration and Payment for the Shares. In consideration for the
Shares, Purchaser shall pay to the Seller a total purchase price of Twelve
Thousand Five Hundred($12,500.00) Dollars in U.S. currency ("Purchase Price").
Purchaser shall pay to the Seller the Purchase Price in U.S. Currency at the
Closing Date.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COMPANY
The Company represents, warrants and undertakes to the Purchaser the
following:
2.1 Due Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas (a)
with full power and authority to own, lease, use, and operate its properties and
to carry on its business as and where now owned, leased, used, operated and
conducted. The Company has no subsidiaries. All actions taken by the current
directors and stockholders of the Company have been valid and in accordance with
the laws of the State of Texas and all actions taken by the Company have been
duly authorized by the current directors and stockholders of the Company as
appropriate.
2.2 (a) Company Authority. The Company has all requisite corporate
power and authority to enter into and perform this Agreement and to consummate
the transactions contemplated herein.
(b) Due Authorization. The execution, delivery and performance by the
Company of this Agreement has been duly and validly authorized and no
further consent or authorization of the Company, its Board of Directors
or its stockholders is required.
(c) Valid Execution. This Agreement has been duly executed and
delivered by the Company.
(d) Binding Agreement. This Agreement constitutes, and upon execution
and delivery thereof by the Company, will constitute, a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms.
(e) No Violation of Corporate Documents or Agreements. The execution
and delivery of this Agreement by the Company and the performance by
the parties hereto of their obligations hereunder will not cause,
constitute, or conflict with or result in (i) any breach or violation,
or give rise to a right of termination, cancellation or acceleration of
any obligation or to loss of a material benefit under, or to increased,
additional, accelerated or guaranteed rights or entitlements of any
person under any of the provisions of, or constitute a default under,
any license, indenture, mortgage, charter, instrument, articles of
incorporation, bylaw, judgment, order, decision, writ, injunction, or
decree or other agreement or instrument or proceeding to which the
Company or its stockholders are a party, or by which they may be bound,
nor will any consents or authorizations of any party other than those
hereto by required, (ii) an event that would cause the Company to be
liable to any party, or (iii) an event that would result in the
creation or imposition or any lien, charge or encumbrance on any asset
of the Company or on the securities of the Company to be acquired by
the Purchaser.
2.3 Authorized Capital, No Preemptive Rights, No Liens; Anti-Dilution.
As of the date hereof, the authorized capital of the Company is 25,000,000
shares of Common Stock, with a par value of $0.001. There is no authorized
preferred stock of any kind. The issued and outstanding capital stock of the
Company is 1,730,939 shares of Common Stock. All of the shares of capital stock
are duly authorized, validly issued, fully paid and non-assessable. No shares of
capital stock of the Company are subject to preemptive rights or similar rights
of the stockholders of the Company or any liens or encumbrances imposed through
the actions or failure to act of the Company, or otherwise. As of the date
hereof (i) there are no outstanding options, warrants, convertible securities,
scrip, rights to subscribe for, puts, calls, rights of first refusal, tag-along
agreements, nor any other agreements, understandings, claims or other
commitments or rights of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for any shares of capital stock of the
Company, or arrangements by which the Company is or may become bound to issue
additional shares of capital stock of the Company, and (ii) there are no
agreements or arrangements under which the Company is obligated to register the
sale of any of its securities under the Securities Act and (iii) there are no
anti-dilution or price adjustment provisions contained in any security issued by
the Company (or in the Company's articles of incorporation or by-laws or in any
agreement providing rights to security holders) that will be triggered by the
transactions contemplated by this Agreement. The Company has furnished to
Purchaser true and correct copies of the Company's articles of incorporation and
by-laws.
2.4 No Governmental Action Required. The execution and delivery by the
Company of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental official,
including but not limited to, the Commission, the NASD, any Texas state security
commission, except such actions or filings that have been undertaken or made
prior to the date hereof and that will be in full force and effect (or as to
which all applicable waiting periods have expired) on and as of the date hereof
or which are not required to be filed on or prior to the Closing Date.
2.5 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Company of this Agreement and the performance by
the parties hereto of the transactions contemplated hereby does not and will not
contravene or constitute a default under or violation of (i) any provision of
applicable law or regulation, (ii) the Company's articles of incorporation or
bylaws, or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any its assets, or result in the creation
or imposition of any lien on any asset of the Company. The Company is in
compliance with and conforms to all statutes, laws, ordinances, rules,
regulations, orders, restrictions and all other legal requirements of any
domestic or foreign government or any instrumentality thereof having
jurisdiction over the conduct of its businesses or the ownership of its
properties.
2.6 SEC Representations. Through the date hereof, the Company has filed
all forms, reports and documents with the Commission required to be filed by it
pursuant to Section 15(d) of the Securities Exchange Act of 1934 ("SEC
Reports"). True and complete copies of the required SEC Reports have been
delivered to the Purchaser by the Seller and are incorporated herein by
reference. Such SEC Reports, at the time filed, complied in all material
respects with the requirements of the federal and state securities laws and the
rules and regulations of the Commission thereunder applicable to such SEC
Reports. None of the SEC Reports, including without limitation, any financial
statements or schedules included therein, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
2.7 Financial Statements. (a) The Purchaser has received a copy of the
audited financial statements of the Company for the fiscal year ended December
31, 2003 ("Audited Financial Statements"), and the related statements of income
and retained earnings for the period then ended. The Audited Financial
Statements have been prepared in accordance with generally accepted accounting
principles consistently followed by the Company throughout the periods
indicated. Such financial statements fairly present the financial condition of
the Company at the dates indicated and its results of their operations and cash
flows for the periods then ended and, except as indicated therein, reflect all
claims against, debts and liabilities of the Company, fixed or contingent, and
of whatever nature. (b) Since December 31, 2003 (the "Balance Sheet Date"),
there has been no material adverse change in the assets or liabilities, or in
the business or condition, financial or otherwise, or in the results of
operations or prospects, of the Company, whether as a result of any legislative
or regulatory change, revocation of any license or rights to do business, fire,
explosion, accident, casualty, labor trouble, flood, drought, riot, storm,
condemnation, act of God, public force or otherwise and no material adverse
change in the assets or liabilities, or in the business or condition, financial
or otherwise, or in the results of operation or prospects, of the Company except
in the ordinary course of business. (c) Since the Balance Sheet Date, the
Company has not suffered any damage, destruction or loss of physical property
(whether or not covered by insurance) affecting its condition (financial or
otherwise) or operations (present or prospective), nor has the Company issued,
sold or otherwise disposed of, or agreed to issue, sell or otherwise dispose of,
any capital stock or any other security of the Company and has not granted or
agreed to grant any option, warrant or other right to subscribe for or to
purchase any capital stock or any other security of the Company or has incurred
or agreed to incur any indebtedness for borrowed money.
2.8 No Litigation. The Company is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or pending or
threatened governmental investigation. The Company is not subject to or in
default with respect to any order, writ, injunction, or decree of any federal,
state, local, or foreign court, department, agency, or instrumentality.
2.9 No Taxes. The Company is not, and will not become with respect to
any periods ending on or prior to the Closing Date, liable for any income,
sales, withholding, franchise, excise, license, real or personal property taxes
(a "Tax") to any foreign, United States federal, state or local governmental
agencies whatsoever, including without limitation, in respect of the forgiveness
of debt to be made by the Seller on or prior to the Closing Date. All United
States federal, state, county, municipality local or foreign income Tax returns
and all other material Tax returns (including information returns) that are
required, or have been required, to be filed by or on behalf of the Company have
been or will be filed as of the Closing Date and all Taxes due pursuant to such
returns or pursuant to any assessment received by the Company have been or will
be paid as of the Closing Date. The charges, accruals and reserves on the books
of the Company in respect of taxes or other governmental charges have been
established in accordance with GAAP. All returns that have been filed or lodged
relating to Tax are true and accurate in all material respects. No audit,
action, suit, proceeding or other examination regarding taxes for which the
Company may have any liability is currently pending against or with respect to
the Company and neither Seller or Company has received any notice (formally or
informally) of any audit, suit, proceeding or other examination. No material
adjustment relating to any Tax returns, no closing or similar agreement have
been entered into or issued or have been proposed (formally or informally) by
any tax authority (insofar as such action relate to activities or income of or
could result in liability of the Company for any Tax) and no basis exists for
any such actions. The Company has not changed any election, adopted or changed
any accounting method or period, filed any amended return for any Tax, settled
any claim or assessment of any Tax, or surrendered any right to claim any refund
of any Tax, or consented to any extension or waiver of the statute of
limitations for any Tax. The Company has not had an "ownership change" as that
term is defined in Section 382 of the Internal Revenue Code of 1986, as amended
and in effect.
2.10 Material Agreements. The Company is not currently carrying on any
business and is not a party to any contract, agreement, arrangement,
understanding, lease (whether written or oral) or order that would subject it to
any obligations or restrictions of any nature whatsoever after the closing of
the transactions contemplated by this Agreement. Without limiting the generality
of the foregoing:
(a) The Company does not have any employees or agents.
(b) The Company has no employment contracts or agreements with any
of its officers, directors, or with any consultants, employees
or other such parties.
(c) The Company has no stockholder contracts or agreements.
(d) The Company is not in default under any contract or any other
document.
(e) The Company has no written or oral contracts with any third
party except a transfer agent agreement with the Securities
Transfer Corporation and a lease agreement on its warehouse
space.
(f) The Company has no outstanding powers of attorney and no
obligations concerning the performance of the Seller
concerning this Agreement.
(g) The Company is not required to hold and does not hold any
Permits ("Permits" means all licenses, franchises, grants,
authorizations, permits, easements, variances, exemptions,
consents, certificates, orders and approvals necessary to own,
lease and operate the properties, of, and to carry on the
business of the Company).
(h) Neither the Company nor, to the Company's knowledge, any
employee or agent of the Company has made any payments of
funds of the Company, or received or retained any funds, in
each case in violation of any law, rule or regulation or of a
character required to be disclosed by the Company in any of
the SEC Reports.
(i) There are no outstanding judgments or UCC financing statements
or UCC securities interests filed against the Company or any
of its properties.
(j) The Company has no debt, loans, or obligations of any kind, to
any of its directors, officers, stockholders or employees or
third parties that will not be satisfied at the Closing Date.
(k) The Company does not own or lease, and has never owned or
leased, any real estate or any interests in real estate, plant
or equipment except its current warehouse space located in
DeSoto, Texas. The Company does not own or license, and has
never owned or licensed, any patents, copyrights, or
trademarks. The Company does not license the intellectual
property of others nor owe fees or royalties on the same.
(l) The Company has no outstanding provisions for indemnification
of any person with respect to liabilities relating to any
current or former business of the Company or any predecessor
person.
2.11 No Liabilities. The Company will not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due that are not reflected on its financial
statements.
2.12 OTC Listing. The Company is currently listed on the OTC Bulletin
Board under the trading symbol "MTEM".
2.13 Compliance with Law. To the best of its knowledge, the Company has
complied with, and is not in violation of any provision of laws or regulations
of federal, state or local government authorities and agencies. There are no
pending or threatened proceedings against the Company by any federal, state or
local government, or any department, board, agency or other body thereof.
2.14 Corporate Documents Effective. The articles of incorporation, as
amended, and the bylaws of the Company, as provided to Purchaser are, in full
force and effect and all actions of the Board of Directors or stockholders
required to accomplish same have been taken.
2.15 No Stockholder Approval Required. The acquisition of the Shares by
Purchaser from Seller does not require the approval of the stockholders of the
Company under the Texas Business Corporation Act ("TBCA"), the Company's
articles of incorporation or bylaws, or any other requirement of law.
2.16 No Dissenters' Rights. The acquisition of the Shares by Purchaser
from Seller and the other transactions contemplated by this Agreement will not
give rise to any dissenting stockholders' rights under the TBCA, the Company's
articles of incorporation or bylaws, or otherwise.
2.17 Not Subject to Voting Trust. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to such Shares. The Company
is not a party to any agreement that offers or grants to any person the right to
purchase or acquire any of the securities to be issued pursuant to this
Agreement. There is no applicable local, state or federal law, rule, regulation,
or decree which would, as a result of the transfer of the Shares to Purchaser,
impair, restrict or delay any voting rights with respect to the Shares.
2.18 Prior Offerings. All issuances by the Company of shares of Common
Stock in past transactions have been legally and validly effected, and all of
such shares of Common Stock are fully paid and non-assessable. All of the
offerings of the Company's Common Stock were conducted in strict accordance with
the requirements of Regulation D, Rules 504 and 506, as applicable, in full
compliance with the requirements of the Securities Act of 1933 and in full
compliance with and according to the requirements of the TBCA and the Company's
articles of incorporation and bylaws.
2.19 True Representations. The information heretofore furnished by the
Company to the Purchaser for purposes of or in connection with this Agreement or
any transaction contemplated hereby does not, and all such information hereafter
furnished by the Seller or the Company to the Purchaser will not (in each case
taken together and on the date as of which such information is furnished),
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in the light of the
circumstances under which they are made, not misleading.
2.20 Complete Books and Records. The Certificates and all corporate
records and documents of Company (which have been made available for inspection
by Purchaser prior to the date hereof) are true and complete in all respects.
2.21 Corporate Name. The Company (i) has the exclusive right to use the
name "Millennia Tea Masters, Inc." as the name of a corporation in any
jurisdiction in which the Company does business and (ii) has not received any
notice of conflict in the past with respect to the rights of others regarding
the corporate name of the Company. To the knowledge of the Seller, no person is
presently authorized by the Seller or the Company to use the name of the
Company. Seller has previously made available to Purchaser copies of any
documents in the possession of the Seller granting any authorizations of the
type referred to in the previous sentence.
2.22 Complete Shareholder List. The list of shareholders of the Company
and their respective holdings of shares in the Company to be delivered to the
Purchaser at the Closing Date is complete, true, accurate and complete in all
respects.
2.23 Survival. The representations and warranties herein with respect
to the Company will be true and correct in all material respects on and as of
the Closing Date with the same force and effect as though said representations
and warranties had been made on and as of the Closing Time and will survive the
Closing Date for a period of ONE (1) year, provided, however, that the
representations and warranties set out at Section 3.1 and 3.2 shall not be
limited by this Section 3.24 and the representation and warranty set out at
Section 3.9 shall survive for all applicable statutes of limitations.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Unless specifically stated otherwise, Purchaser represents and warrants
that the following are true and correct as of the date hereof and will be true
and correct through the Closing Date as if made on that date:
3.1 Agreement's Validity. This Agreement has been duly executed and
delivered by Purchaser and constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
3.2 Investment Intent. Purchaser is acquiring the Shares for its own
account for investment and not with a view to, or for sale or other disposition
in connection with, any distribution of all or any part thereof, except (i) in
an offering covered by a registration statement filed with the Commission under
the Securities Act covering the Shares, or (ii) pursuant to an applicable
exemption under the Securities Act.
3.3 Restricted Securities. Purchaser understands that the Shares have
not been registered pursuant to the Securities Act or any applicable state
securities laws, that the Shares will be characterized as "restricted
securities" under federal securities laws, and that under such laws and
applicable regulations the Shares cannot be sold or otherwise disposed of
without registration under the Securities Act or an exemption therefrom. In this
connection, Purchaser represents that it is familiar with Rule 144 promulgated
under the Securities Act, as currently in effect, and understands the resale
limitations imposed thereby and by the Securities Act. Stop transfer
instructions may be issued to the transfer agent for securities of the Company
(or a notation may be made in the appropriate records of the Company) in
connection with the Shares.
3.4 Legend. It is agreed and understood by Purchaser that the
Certificates representing the Shares shall each conspicuously set forth on the
face or back thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT TO
AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
3.5 Disclosure of Information. Purchaser acknowledges that it has been
furnished with information regarding the Company and its business, assets,
results of operations, and financial condition to allow Purchaser to make an
informed decision regarding an investment in the Shares. Purchaser represents
that it has had an opportunity to ask questions of and receive answers from the
Company regarding the Company and its business, assets, results of operation,
and financial condition.
3.6 Affirmation of No Solicitation. Purchaser affirms that he was not
solicited by Seller to enter into this Agreement and further affirms that he
approached the Company's Board of Directors with an offer to purchase control of
the Company on an unsolicited basis.
ARTICLE 4
INDEMNIFICATION
4.1 The Company shall be liable for and hereby agrees to indemnify and
hold harmless the Purchaser against any Losses joint or several, to which
Purchaser and/or the Company may become subject under the Securities Act, the
Securities Exchange Act, any state or federal law, statutory or common law, or
otherwise insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise from,
relate to or are otherwise in respect of the execution of this Agreement and the
performance of the transactions contemplated herein. Such indemnity will
include, without limitation whatsoever, indemnification for Losses that arise
from, relate to or are otherwise in respect of:
(a) the inaccuracy of any warranty or representation contained in
this Agreement, or any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(b) any breach of any covenant of the Company contained in this
Agreement; or
(c) the Company or its assets or liabilities to the extent that
such Losses relate to events, occurrences, actions, omissions,
facts or circumstances occurring or existing prior to the
Closing Date.
This indemnification will include, without limitation whatsoever,
indemnification for all liabilities for taxes of the Company for all periods
ending on or prior to the Closing Date and all taxes for the Company for all
periods ending on or prior to the Closing Date. Seller will in addition
reimburse Purchaser and the Company for any legal or any other expenses
reasonably incurred by Purchaser in connection with investigating or defending
any such loss, claim, liability, action or proceeding. The indemnity provided
for in this Section 5.1 shall remain in full force and effect regardless of any
investigations made by or on behalf of Purchaser and shall survive the Closing
for a period of one year, and with respect to any tax, for the duration of any
applicable statute of limitations. As used in this Section 5.1, "Losses" means
any loss, claim, demand, damage, award, liabilities, suits, penalties,
forfeitures, cost or expense (including, without limitation, reasonable
attorneys', consultant and other professional fees and disbursements of every
kind, nature and description).
4.2 All indemnification payments required to be made under this
Agreement shall be made on an after-tax basis, meaning that any such payment
shall be increased to account for the imposition of any tax resulting from the
receipt or accrual of such indemnity payment, such that the net amount received
by the indemnified party or parties is equal to the full amount of the payment
prior to the imposition of and adjustment for such taxes.
ARTICLE 5
CLOSING ,DELIVERY OF DOCUMENTS AND POST CLOSING COVENANTS
5.1 Closing. The Closing Date shall be held on or before February 27,
2004. The Closing Date shall occur as a single integrated transaction, as
follows.
(m) Delivery by Company. Company shall deliver to Purchaser:
(i) copies of board resolutions by the Board of Directors
of the Company approving the terms of this Agreement
and the execution of the Agreement by the Company.
(ii) copies of all books, records and documents relating
to the Company;
(iii) a certified copy of the list of the Company's
shareholders and their respective holdings of shares
in the Company as of the Closing Date;
(iv) any other such instruments, documents and
certificates as are required to be delivered by
Company or its representatives pursuant to the
provisions of this Agreement; and
(v) the Certificates to Purchaser as directed by
Purchaser.
(n) Delivery by Purchaser
(i) The Purchaser shall pay to the Seller the Purchase
Price of $12,500.00 Dollars in U.S. currency by wire
transfer to a bank account designated in writing by
the Company or by delivery of a certified or
cashier's check.
(o) Post-Closing Actions
(i) Immediately upon the Closing Date, the Board of
Directors of the Company shall resolve to appoint
Xxxxxx Xxxxxxx as a director of the Company with
immediate effect;
(ii) Following the appointment of Xxxxxx Xxxxxxx to the
Board of Directors of the Company, and following the
filling and mailing to shareholders of a Schedule
14F-1 Information Statement, the current officers and
directors of the Company shall resign from the Board
of Directors and as officers of the Company.
ARTICLE 6
AMENDMENT AND WAIVER
6.1 Waiver. 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 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.
ARTICLE 7
POST CLOSING COVENANTS
7.1 Merger. Subject to entering into binding agreements, Purchaser
intends to cause the Company to acquire two non affiliated companies with
potential for annual revenues exceeding $5MM.
ARTICLE 8
MISCELLANEOUS
8.1 Entire Agreement. This Agreement 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
understanding 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 the
written statement, 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 set forth.
8.2 Notices. Any notice or communications hereunder must be in writing
and given by depositing same in the United States mail addressed to the party to
be notified, postage prepaid and registered or certified mail with return
receipt requested or by delivering same in person. Such notices shall be deemed
to have been received on the date on which it is hand delivered or on the third
business day following the date on which it is to be mailed. For purpose of
giving notice, the addresses of the parties shall be:
If to Company:
Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxxx, #000
Xxxxxx, XX 00000
Fax: 000-000-0000
If to Purchaser to:
Xxxxxx Xxxxxxx
00000 X.X. 00xx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000 954-434-5627
Fax: 000-000-0000
8.3 Governing Law.. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of Texas (without regard to principles of conflicts of law).
8.4 Consent to Jurisdiction. Each party irrevocably submits to the
exclusive jurisdiction of the appropriate state or federal court in the state of
Texas for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby or thereby. The parties
agree that any service of process to be made hereunder may be made by certified
mail, return receipt requested, addressed to the party at the address appearing
in Section 9.2, together with a copy to be delivered to such party's attorneys
via telecopier (if provided in Section 9.2). Such service shall be deemed to be
completed when mailed and sent and received by Telecopier. Company and Purchaser
each waives any objection based on forum non-conveniens. Nothing in this
paragraph shall affect the right of Company or Purchaser to serve legal process
in any other manner permitted by law.
8.5 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.6 Waivers and Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, canceled, renewed, or
extended, and the terms hereof may be waived, only by a written instrument
signed by authorized representatives of the parties or, in the case of a waiver,
by an authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede, cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege shall hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party of
any such right, power or privilege, or any single or partial exercise of any
such right, power of privilege, preclude any further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity. The rights and remedies of any
party based upon, arising out of or otherwise in respect of any inaccuracy in or
breach of any representation, warranty, covenant or agreement contained in this
Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such inaccuracy
or breach is based may also be the subject of any other representation,
warranty, covenant or agreement contained in this Agreement (or in any other
agreement between the parties) as to which there is no inaccuracy or breach.
8.7 Binding Effect; No Assignment, No Third-Party Rights. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto or by
operation of law. This Agreement is for the sole benefit of the parties hereto
and their permitted assigns, and nothing herein, expressed or implied, shall
give or be construed to give to any person, including any union or any employee
or former employee of Seller, any legal or equitable rights, benefits or
remedies of any nature whatsoever, including any rights of employment for any
specified period, under or by reason of this Agreement.
8.8 Further Assurances. Each party shall, at the request of the other
party, at any time and from time to time following the Closing Date promptly
execute and deliver, or cause to be executed and delivered, to such requesting
party all such further instruments and take all such further action as may be
reasonably necessary or appropriate to carry out the provisions and intents of
this Agreement and of the instruments delivered pursuant to this Agreement.
8.9 Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of the Agreement, or the application of such provision or portion of
such provision is held invalid or unenforceable to person or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and such provision or portion of any provision as shall have
been held invalid or unenforceable shall be deemed limited or modified to the
extent necessary to make it valid and enforceable, in no event shall this
Agreement be rendered void or unenforceable.
8.10 Exhibits and Schedules. All exhibits annexed hereto, and all
schedules referred to herein, are hereby incorporated in and made a part of this
Agreement as if set forth herein. Any matter disclosed on any schedule referred
to herein shall be deemed also to have been disclosed on any other applicable
schedule referred to herein.
8.11 Captions. All section titles or captions contained in this
Agreement or in any schedule or exhibit annexed hereto or referred to herein,
and the table of contents to this Agreement, are for convenience only, shall not
be deemed a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement. All references herein to sections shall be
deemed references to such parts of this Agreement, unless the context shall
otherwise require.
8.12 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Closing Date occurs, each party hereto shall pay
its own expenses incidental to the preparation of this Agreement, the carrying
out of the provisions hereof and the consummation of the transactions
contemplated. For the avoidance of doubt, any fees and expenses incurred by the
Seller or the Company in connection with entering into this Agreement and the
transactions contemplated hereby shall be paid by the Seller and not the
Company.
8.14 Public Announcements. The parties agree to consult with each other
before issuing any press release or making any public statement or completing
any public filing with respect to this Agreement or the transactions
contemplated hereby and, except as may be required by applicable law or any
listing agreement with any national securities exchange or quotation system,
will not issue any such press release or make any such public statement prior to
consultation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first written herein above.
XXXXXX XXXXXXX
By: /s/ Xxxxxx Xxxxxxx
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MILLENNIA TEA MASTERS, INC.
By /s/ Xxxxx X. Xxxxxx - President
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