STOCK TRANSFER AGREEMENT
This is a STOCK TRANSFER AGREEMENT, dated November , 2001 (the
"Agreement") by and among Manayunk Ventures, Inc., a Pennsylvania corporation
("BUYER"), and Red Xxxx Brewing Company, a Pennsylvania corporation
("SHAREHOLDER"), for the transfer of the stock of Red Xxxx Brewery & Pub
Company-Manayunk, Inc., a Pennsylvania corporation ("CORPORATION").
WITNESSETH:
WHEREAS, SHAREHOLDER is the owner of all of the issued and outstanding
shares of the capital stock of CORPORATION, which consists of shares of common
stock, par value $__ per share (collectively, the "Stock"); and
WHEREAS, CORPORATION is currently the tenant under a lease for certain
real property located at 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, in the
Manayunk section of Philadelphia (the "Property"), and SHAREHOLDER is a
guarantor under said lease; and
WHEREAS, CORPORATION is constructing upon and developing the Property
in order to operate a restaurant, brewpub and microbrewery at said location, in
conjunction with which CORPORATION owns certain furniture, fixtures and
equipment for use on the Property and has applied for a liquor license and such
other licenses as may be required to operate the intended business at the
Property; and
WHEREAS, BUYER desires to acquire and SHAREHOLDER desires to sell,
assign and transfer to BUYER all of the Stock upon the terms and conditions set
forth in this Agreement (the "Transfer");
NOW, THEREFORE, in consideration of the promises and of the respective
representations and warranties set forth in this Agreement, and of the covenants
and agreements contained herein, and intending to be legally bound hereby,
BUYER, CORPORATION, and SHAREHOLDER agree as follows:
1. SALE OF STOCK.
Subject to the terms and conditions set forth in this Agreement:
1.1 SHAREHOLDER hereby agrees: (a) at the Closing as defined in
Paragraph 2 of this Agreement, to sell, assign and transfer the Stock
to BUYER and BUYER agrees, at such Closing, to acquire such Stock; and
(b) within 90 days of the execution of this Agreement to transfer to
BUYER 500,000 shares of common stock in Red Xxxx Brewing Company (the
"Parent Stock").
1.2 SHAREHOLDER shall make such sale, transfer, assignment and
delivery of:
1.2.1 The Stock by delivering to the BUYER all certificates
evidencing the Stock, free and clear of all liens, encumbrances
or claims of others whatsoever, duly endorsed in blank or
accompanied by appropriate instruments of transfer satisfactory
to BUYER.
1.2.2 The Parent Stock by delivering to the BUYER all
certificates evidencing the Parent Stock, free and clear of all
liens, encumbrances or claims of others whatsoever, duly
endorsed in blank or accompanied by appropriate instruments of
transfer satisfactory to BUYER.
1.3 BUYER will deliver the consideration for the stock to the
SHAREHOLDER in the following manner:
1.3.1 At Closing, immediately upon transfer of the Stock, BUYER
will cause CORPORATION to execute and deliver to SHAREHOLDER a
Guaranty, whereby CORPORATION will guaranty the obligations of
SHAREHOLDER under (a) that Promissory Note and Security
Agreement in favor of CDB Finance Corporation ("CDB Finance")
dated April 27, 2001, as restated and supplemented on October 1,
2001, in the principal amount of $245,323.00 (the "October 1
Note"); (b) that restated Promissory Note and Security Agreement
in favor of CDB Finance dated August 23, 2001, in the principal
amount of $239,600.00 (the "August 23 Note"); and (c) that
restated Promissory Note and Security Agreement in favor of CDB
Finance dated August 5, 2001, in the principal amount of
$63,100.00 (the "August 5 Note") (collectively, the "Notes").
1.3.2 At Closing, immediately upon transfer of the Stock, BUYER
will cause CORPORATION to execute and deliver to SHAREHOLDER a
Management Agreement, in a form acceptable to the parties,
between and among CORPORATION, SHAREHOLDER, and Xxxxx X. Xxxx,
individually.
Provided, however, that the purchase price shall be subject to
reduction in accordance with the provisions of Paragraph 9.3 of this
Agreement.
2. CLOSING.
The Closing under this Agreement shall take place at 3:00 p.m.
at the offices of CDB Finance, on or before December 3, 2001. Closing
may also take place at such other time and place as the parties shall
mutually agree in writing.
3. REPRESENTATIONS AND WARRANTIES OF CORPORATION AND SHAREHOLDER.
CORPORATION and SHAREHOLDER hereby jointly and severally make
the following representations and warranties, each of which is true and
correct on the date hereof and will be true and correct on the Closing
Date and each of which shall survive the Closing Date and the
transactions contemplated hereby to the extent set forth in Paragraph 9
hereof.
3.1 Corporate Existence and Qualification. CORPORATION is a
corporation duly organized, validly existing and in good standing under
the laws of the Commonwealth of Pennsylvania and is duly qualified to
conduct its business in the Commonwealth of Pennsylvania. CORPORATION
has the corporate power and authority to own and use its properties and
to transact the business in which it is engaged, and to enter into this
Agreement and to consummate the transaction contemplated hereby.
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3.2 Capitalization. The entire authorized capital stock of
CORPORATION consists of __ shares of Common Stock, /share par value.
There are presently issued and outstanding __ shares of Common Stock,
all of which are duly authorized, validly issued, fully paid and
non-assessable and without restriction on the right of transfer thereof
and which were issued in compliance with all applicable federal and
state securities or "blue-sky" laws and regulations. The remaining
authorized shares have never been issued. There are no outstanding
warrants, options, contracts, calls, or other rights of any kind with
regard to any authorized and unissued, or issued but not outstanding,
shares of Common Stock or any other security of CORPORATION of any
kind. SHAREHOLDER does not have any right or obligation to purchase or
redeem any shares of Common Stock or any other security of CORPORATION
of any kind.
3.3 Title to Stock. SHAREHOLDER is the sole record and beneficial
owner of the issued and outstanding shares of Common Stock and
SHAREHOLDER has full right and title without any lien or encumbrance
whatsoever to such shares and full and unrestricted right, power and
authority to exchange, assign, transfer and deliver such shares, free
and clear of claims, charges, equities, restrictions, pledges, liens or
encumbrances of any kind. SHAREHOLDER acquired such shares legally and
without knowledge or notice of any infirmity with respect to such
shares. Each of the certificates representing such shares is in the
form approved by the Board of Directors of CORPORATION and has been
duly executed by the Officers of CORPORATION authorized to execute the
same and bears the corporate seal of CORPORATION, duly affixed hereto
by an authorized officer of CORPORATION. There are no restrictions as
to the transferability of such shares.
3.4 Authorization of Transaction. SHAREHOLDER has full power and
authority (including full corporate power and authority) to execute and
deliver this Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of
SHAREHOLDER, enforceable in accordance with its terms and conditions.
SHAREHOLDER need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement. SHAREHOLDER holds of record and owns
beneficially all the Shares in CORPORATION, free and clear of any
restrictions on transfer (other than any restrictions under the
Securities Act and state securities laws), taxes, security interests,
options, warrants, purchase rights, contracts, commitments, equities,
claims, and demands.
3.5 Agreement Legal and Authorized. The execution and delivery of
this Agreement does not, and the consummation by SHAREHOLDER of the
transactions contemplated herein and the fulfillment by SHAREHOLDER of
the terms, conditions, and provisions hereof, will not:
3.5.1 conflict with, or result in a breach of, any of the terms,
conditions or provisions of, or constitute a default under
Articles of Incorporation or Bylaws or any agreement or other
instrument to which CORPORATION or SHAREHOLDER are a party or by
which any of CORPORATION'S properties or assets are bound, or
grant any other party the right to terminate an agreement with
CORPORATION;
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3.5.2 conflict with, violate or result in a breach of any law,
administrative regulation or court decree applicable to
CORPORATION or the SHAREHOLDER;
3.5.3 result in the creation or imposition of any lien, charge
or encumbrance of any nature upon any of the properties or
assets of CORPORATION or upon outstanding CORPORATION Stock
except as provided herein.
3.6 Valid and Binding Obligation. CORPORATION has the right, power,
legal capacity and authority to enter into and perform its obligations
under this Agreement. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate action
on the part of the CORPORATION. This Agreement constitutes a valid,
binding and enforceable obligation of CORPORATION and of the
SHAREHOLDER.
3.7 Financial Statements. The financial statements of CORPORATION,
appearing as Schedule 3.7 are true, complete and correct, have been
prepared in conformity with generally accepted accounting principles
consistently maintained and applied, and present fairly the financial
position of CORPORATION at the respective dates indicated, and do not
omit to state or reflect any material fact concerning CORPORATION
required to be stated or reflected therein or necessary to make the
statements therein not misleading.
3.8 Events Subsequent to Financial Statements. Since the date of the
financial statements appearing as Schedule 3.7, there has been no, and
there has been no threatened or anticipated:
(a) change in the financial condition, assets, liabilities,
prospects or business of CORPORATION;
(b) damage, destruction or loss (whether or not covered by
insurance) materially adversely affecting the business, prospects or
any property of CORPORATION or any material deterioration in the
operating condition of CORPORATION'S assets;
(c) declaration, setting aside or payment of a dividend, return
of capital or other distribution in respect of any of CORPORATION'S
capital stock, or any direct or indirect redemption, purchase or other
acquisition of any capital stock or securities convertible into or
exchangeable for such capital stock;
(d) lockout, labor trouble or any event or condition of any
character materially adversely affecting the business, properties or
prospects of CORPORATION;
(e) mortgage or pledge of or creation of any other lien, claim
or encumbrance with respect to any of CORPORATION'S assets, whether
tangible or intangible;
(f) making or authorization of any capital expenditures in
excess of $ ____;
(g) cancellation or waiver of any right material to the
operation of CORPORATION'S business or any cancellation or waiver of
any debts or claims of substantial value or any cancellation or waiver
of any debts or claims against any affiliate of CORPORATION;
(h) sale, transfer or other disposition of any assets of
CORPORATION, except sales of assets in the ordinary course of business;
(i) payment, discharge or satisfaction of any liability or
obligation (whether accrued, absolute, contingent or otherwise) by
CORPORATION, other than the payment, discharge or satisfaction, in the
ordinary course of business, of liabilities or obligations shown or
reflected on the financial statement attached hereto or incurred in the
ordinary course of business since the date thereof;
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(j) adverse change or any threat of any adverse change in
CORPORATION'S relations with, or any loss or threat of loss of, any of
CORPORATION'S important suppliers, vendors, or contractors;
(k) change by CORPORATION in the method of accounting or keeping
its books of record or accounting practices;
(l) creation, incurrence, assumption or guarantee by CORPORATION
of any obligations or liabilities (whether absolute, accrued,
contingent or otherwise and whether due or to become due), except in
the ordinary course of business or any creation, incurrence, assumption
or guarantee by CORPORATION of any indebtedness for money borrowed;
(m) disposition of or failure to keep in effect any rights in,
to or for the use of any material patent, trademark, service xxxx,
trade name or copyright used by CORPORATION, or any disclosure to any
person not an employee or other disposition of any trade secret,
process or know-how belonging to or used by CORPORATION; or
(n) any transaction, agreement or event outside the ordinary
course of CORPORATION'S business or inconsistent with past practice.
3.9 Undisclosed Liabilities. CORPORATION does not have any
liabilities or obligations whatsoever, whether due or to become due,
accrued, absolute, contingent or otherwise, including liabilities for
or in respect of taxes (including, without limitation, any interest or
penalties relating thereto), and SHAREHOLDER knows of no basis for any
claim against CORPORATION for any liability, except (a) to the extent
set forth and used in determining the new worth of CORPORATION in the
financial statement (b) to the extent specifically set forth in this
Agreement or on any of the Schedules delivered pursuant hereto, or (c)
liabilities or obligations incurred in the normal and ordinary course
of CORPORATION since compilation of the financial statement. Neither
CORPORATION nor SHAREHOLDER knows or has any reasonable ground to know
of any basis for the assertion against CORPORATION of any liability of
any nature not included on the financial statement attached hereto or
incurred in the ordinary course of business since the date thereof.
3.10 All Creditors to be Paid. CORPORATION will supply to BUYER a
list of all CORPORATION'S creditors as of the date hereof and the
amounts owed thereto. CORPORATION and SHAREHOLDER warrant that all
liabilities or obligations of CORPORATION whatsoever, either accrued
prior to Closing, contingent or otherwise, except for those set forth
on the Schedule attached hereto as Schedule 3.10.1 (and in amounts no
greater than as set forth on such Schedule), will be paid and satisfied
in full on or before Closing.
3.10.1 Adjusted Balance Sheet. An adjusted balance sheet
reflecting the financial condition of CORPORATION as of ____ ,
2001, is attached hereto on Schedule 3.10.1 Such statement is
true, complete and correct, has been prepared in conformity with
generally accepted accounting principles consistently maintained
and applied and presents fairly the financial position of
CORPORATION on _____, 2001, and does not omit to state or
reflect any material fact concerning CORPORATION required to be
stated or reflected therein or necessary to make the statements
therein not misleading.
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3.11 Taxes.
3.11.1 CORPORATION has filed, or caused to be filed, with the
appropriate foreign, federal, state, local and other agencies,
all tax returns and tax reports required by law to be filed by
it and such returns and reports are true, complete and
correct.
3.11.2 There exists no past due unpaid federal, state or local
income or other tax or any tax deficiency by a governmental
agency or authority having jurisdiction assessed against
CORPORATION.
3.11.3 There exist no grounds for the assertion or assessment
of any additional taxes against CORPORATION or its assets.
3.11.4 Copies of all federal income tax returns, tax
examination reports and statements of deficiencies assessed
against, or agreed to by, CORPORATION since its incorporation
will be made available to BUYER. Such tax returns, and all
records pertinent to their preparation, shall remain the
property of CORPORATION after closing and shall be delivered
into possession of BUYER at or before that time. No waiver of
any statute of limitations has been given and is in effect
against CORPORATION.
3.11.5 SHAREHOLDER shall be responsible for the preparation
and timely filing (without extension) of all corporate tax
returns and tax reports required by law of CORPORATION for
fiscal year ending , 2001. SHAREHOLDER shall pay, out of
personal funds, the cost associated with such preparation.
SHAREHOLDER shall also be personally responsible for all taxes
due or payable by CORPORATION for fiscal year ending , 2001.
CORPORATION shall not be charged for any payments, as
aforesaid, and to the extent CORPORATION or BUYER is required
to pay any such taxes or costs, SHAREHOLDER shall immediately
indemnify the payor for same. Copies of all such returns shall
be the property of CORPORATION and shall be delivered into the
possession of BUYER immediately upon preparation. BUYER shall
be indemnified by SHAREHOLDER to the extent BUYER incurs any
liability as a result of the preparation and filing of such
returns.
3.12 Personal Property-Owned. CORPORATION has good and merchantable
title to all personal property reflected on Schedule 3.12.1 (with the
exception of a perfected security interest held by _______ on the
_________ described in Schedule 3.12.2) and all such property is
located at the location specified on Schedule 3.12.1. It is
specifically agreed that as of the time of Closing CORPORATION assets
shall include only those assets listed on Schedules 3.12.1 and 3.12.3,
except as to assets acquired or expended by CORPORATION in the ordinary
course of business before Closing.
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3.13 Necessary Property; Title to Assets. The tangible property owned
or leased by CORPORATION, and the intangible personal property
constitute all of such property now used in, and necessary for the
conduct of, the business of CORPORATION in the manner and to the extent
presently conducted or planned by it. There exists no restriction or
reservation affecting CORPORATION'S title to or the utility of its
assets which would prevent it from utilizing such assets, or any part
thereof after the Transfer is consummated, to the same full extent that
they might continue to do so if the transaction contemplated hereby did
not take place. CORPORATION has registered the following fictitious
name, which is available to CORPORATION and used by it currently
without interference: Red Xxxx Brewing & Pub Company - Manayunk. The
use of all names shall belong exclusively to CORPORATION and are not,
and will not, be used by SHAREHOLDER individually or through any other
entity which he owns or controls or is associated with or employed by.
All of the following assets are owned or licensed by CORPORATION, are
proprietary property of CORPORATION, and shall remain with the
CORPORATION (which has good and clear title to same) at and after
closing: All marketing information, all patents, the rights to and
absolute use of all trade secrets, formulas, recipes, plans, technical
specifications and all other data pertaining to the production of
CORPORATION's products, and all rights to and absolute use of all
catalogues, advertising and promotional materials, including artwork
and exhibits.
3.14 Use and Condition of Property. All currently used property and
assets of CORPORATION are in good operating condition and repair as
required for their use in the business of CORPORATION as presently
conducted or planned; and no notice of any violation of any law,
statute, ordinance, or regulation or assessment for public improvements
relating to any of such property or assets has been received by the
SHAREHOLDER or CORPORATION except such as have been fully complied
with. All improvements located on, and the use presently being made of
the Property leased by CORPORATION, comply with all applicable zoning
ordinances and all other applicable laws. CORPORATION and SHAREHOLDER
are not aware of any proposed, pending or threatened change in any such
code, ordinance or standard which would adversely affect the business
of CORPORATION or the use of its property and assets. CORPORATION has
not received any written or oral notice or order by any governmental or
other public authority, any insurance company which has issued a policy
with respect to any of such properties or any board of fire
underwriters or other body exercising similar functions which (a)
relates to violations or alleged violations of building, safety, fire
or other ordinances or regulations, (b) claims any defect or deficiency
with respect to any of such properties or (c) requests the performance
of any repairs, alterations or other work to or in any of such
properties or in the streets bounding the same.
CORPORATION and SHAREHOLDER are not aware of any proposed,
pending or threatened condemnation proceeding or similar action
affecting the property or assets of CORPORATION and there are no
proposed, pending or threatened changes with respect to any streets or
public amenities appurtenant thereto or in the vicinity thereof which
would adversely affect the business of CORPORATION or the use of its
property and assets.
3.15 Contract and Commitments. CORPORATION does not have outstanding:
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3.15.1 Any contract providing for an expenditure by
CORPORATION for the purchase of any real property, machinery,
equipment or other items which are in the nature of capital
investment; or any contract providing for an expenditure by
CORPORATION for the purchase of supplies or other items which
are in the nature of inventory which are not in the ordinary
course of business and consistent ordinary course of business
and consistent with past business practices of CORPORATION.
3.15.2 . Any revocable or irrevocable power of attorney to any
person, firm or CORPORATION for any purpose whatsoever.
3.15.3 Any loan agreement, indenture, promissory note,
conditional sales agreement or other similar type of agreement
other than those reflected in the financial statement or
otherwise disclosed in writing to BUYER.
3.15.4 Any other material contract or commitment which is not
cancellable on thirty (30) days notice or less and which is
not specifically set forth on any other Schedule hereto, or
otherwise in this Agreement.
3.15.5 All leases, contracts and other commitments to which
CORPORATION is a party or by which it is bound are in full
force and effect; all parties to such leases, contracts and
other commitments have complied with the provisions thereof;
no such party is in default under any of the terms thereof;
and no event has occurred that with the passage of time or the
giving of notice or both would constitute a default by any
party under any provision thereof.
3.16 Licenses and Franchises. A list of all licenses, franchises,
agreements or authorizations of any kind under which CORPORATION does
business is set forth in Schedule 3.16. True and correct copies of all
such written licenses, franchises, agreements or authorizations have
been delivered to BUYER; and none of CORPORATION'S rights under such
agreements are being contested and CORPORATION is not in default under
the terms of any such agreements.
3.17 Debt Instruments. A list of all instruments defining the terms on
which CORPORATION has borrowed or is committed to loan money outside of
the ordinary course of its business, or has given or committed to give
a guarantee of any obligation or any other person is set forth in
Schedule 3.17. True and correct copies of such instruments and true and
correct summaries of any oral agreements relating to the matters set
forth in Schedule 3.19 have been delivered to BUYER.
3.18 Reasonableness--Validity of Contracts: No purchase commitment for
materials, supplies, component parts or other items of inventory to
which CORPORATION is a party is in excess of normal, ordinary, usual
and current requirements of its business or at a price in excess of the
current reasonable market price.
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Each of the contracts and agreements to which CORPORATION is a
party is a valid and binding obligation of the parties thereto in
accordance with its terms and conditions. No party to any such contract
or agreement is in default with respect to any term or condition
thereof, nor has any event occurred which, through the passage of time
or the giving of notice, or both, would constitute a default thereunder
or would cause the acceleration of any obligation of any party thereto
or the creation of a lien or encumbrance upon any asset of CORPORATION.
3.19 No Breach of Contract. CORPORATION is not in default under, or in
violation of, any provision of its Articles of Incorporation, Bylaws,
any promissory note, indenture or any evidence of indebtedness or
security therefore, lease, contract, purchase or other commitment or
any other agreement to which CORPORATION is a party or by which
CORPORATION is bound which may result in an adverse effect on the
business or condition, financial or otherwise of CORPORATION.
3.20 Litigation. There is no suit, claim, action or proceeding now
pending or threatened before any court, administrative or regulatory
body, or any governmental agency, nor are SHAREHOLDER or CORPORATION
aware of any grounds therefor, to which CORPORATION is a party or which
may result in any judgment, order, decree, liability or other
determination which will, or could have any material adverse effect
upon the business or conditions, financial or otherwise, of
CORPORATION. No such judgment, order or decree has been entered against
CORPORATION.
3.21 Compliance with Laws. Schedule 3.21 sets forth a list of all
material permits, certificates, licenses, orders, registrations,
franchises, authorizations and other approvals (including those
relating to environmental matters) from all federal, state, local and
foreign bodies and held by CORPORATION. Such licenses and permits are
valid and in full force and effect, and will not be terminated or
otherwise adversely affected by the consummation of the transactions
contemplated hereby. There are no claims, suits, actions or proceedings
(including government investigations and audits) pending, threatened,
or disposed of, relating to the release, discharge or emission of any
pollutants or contaminants (including hazardous and toxic substances)
or the handling, generation, treatment, storage or disposal of any
wastes or otherwise relating to the protection of the environment
resulting from or relating to the activities of CORPORATION.
CORPORATION has not treated, stored for more than ninety (90) days,
recycled or disposed of any hazardous, toxic or polluting substances on
any property now or previously leased by CORPORATION, nor has anyone
else treated, stored for more than ninety (90) days, recycled or
disposed of any hazardous, toxic or polluting substances on any
property now or previously leased by CORPORATION. CORPORATION has
complied with each and is not in violation of any federal, state or
local law, regulation, permit, provision or ordinance relating to the
generation, storage, transportation, treatment or disposal of wastes
(including hazardous, toxic or polluting substances), has obtained and
adhered to all necessary permits or other approvals necessary to store,
dispose or otherwise handle wastes (including hazardous, toxic and
polluting substances), and has reported, to the extent required by
federal, state and local law, all past and present sites where wastes
(including hazardous, toxic or polluting substances), if any, from
CORPORATION have been treated, stored or disposed. CORPORATION has not
transported any hazardous, toxic or polluting substances or arranged
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for the transportation of such substances to any location which is the
subject of federal, state or local enforcement actions or other
investigations which may lead to claims against CORPORATION or BUYER
for cleanup costs, remedial work, damages to natural resources or for
personal injury claims, including, but not limited to, claims or
investigations under the federal Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended ("CERCLA").
SHAREHOLDER shall assume and be solely liable and responsible for any
and all claims, suits, actions, liabilities, costs, damages, expenses
or judgments of any kind relating to pollution control cleanup costs,
remedial work or the environmental matters (including, but not limited
to, claims or investigations under CERCLA) relating to, or arising out
of, the use, possession or operation by CORPORATION of its business,
properties or assets prior to the Closing.
3.22 Officers, Directors, Employees and Consultants. Set forth on
Schedule 3.22 hereto is a complete list of:
3.22.1 all directors of CORPORATION
3.22.2 all officers (with office held) of CORPORATION
3.22.3 all employees of CORPORATION.
3.23 Indebtedness to and from Officers, Directors and Others.
CORPORATION is not indebted to any SHAREHOLDER, director, officer,
employee of CORPORATION.
3.24 Outside Financial Interests. No officer or director of CORPORATION
has any direct or indirect financial interest in any competitor of or
supplier to CORPORATION; provided, however, that for this purpose
ownership of corporate securities having no more than 2% of the
outstanding voting power of any competitor, supplier or customer which
securities are listed on any national securities exchange or traded
actively on the national over-the-counter market shall not be deemed a
financial interest provided such person has no other connection or
relationship with such competitor, supplier or customer.
3.25 Compensation and Perquisites of Agents and Employees. CORPORATION
has properly and accurately reflected on its books and records all
compensation (if any) paid to and perquisites provided to or on behalf
of its agents and employees.
3.26 Employee Agreements. There are no long-term employment agreements
between CORPORATION and any employee. All such agreements, if any, are
oral and may be terminated by CORPORATION at will. CORPORATION is not a
party to (a) any union, collective bargaining or similar agreement, or
(b) any plan or policy providing for "fringe benefits" to its
employees. CORPORATION does not sponsor or maintain and is otherwise
not a party to or liable under any plan, program, fund or arrangement
(whether or not qualified for Federal income tax purposes), whether
benefitting a single individual or multiple individuals and whether
funded or not, that is an "employee pension benefit plan," or an
"employee welfare benefit plan," as such terms are defined in the
Employee Retirement Income Security Act of 1974, as amended ("ERISA").
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3.27 Labor Disputes. There is neither pending nor threatened any labor
dispute, strike or work stoppage which affects or which may affect the
business of CORPORATION or which may interfere with the continued
development and construction of CORPORATION's restaurant and brewpub.
3.28 Insurance Policies. Set forth on Schedule 3.28 hereto is a list of
all insurance policies and bonds in force of which CORPORATION is the
owner, insured or beneficiary, or covering CORPORATION and any of its
properties, operations or personnel. Also set forth on Schedule 3.28
hereto is a listing of when each such policy or bond became effective
and changes or coverage or premiums since inception. Policies thereon
described evidence insurance in such amounts and against such risks and
losses as are generally maintained with respect to comparable
businesses and properties. There is no default with respect to any
provision contained in any such policy, nor has there been any failure
to give any notice or present any claim under any such policy in a
timely fashion or in the manner or detail required by such policy. No
notice of cancellation or non-renewal with respect to, or disallowance
of any claim under, any such policy has been received by CORPORATION.
3.29 Guarantees. CORPORATION is not a guarantor, indemnitor or
otherwise liable for any indebtedness of any other person, firm or
CORPORATION except as endorser of checks received by CORPORATION and
deposited in the ordinary course of business.
3.30 Certain Payments. All of CORPORATION'S payments to agents,
consultants and others have been in payment of bona fide fees and
commissions and not as bribes, illegal or improper payments or payments
to obtain any treatment which CORPORATION was entitled without such
payment. CORPORATION has not made any payment to any person whomsoever
or to any entity whatsoever with respect to which a deduction could be
disallowed under Section 162(c) of the Internal Revenue Code.
3.31 Broker's Fees. Neither CORPORATION nor any of its officers,
directors, or employees on behalf of CORPORATION has paid or agreed to
pay any brokerage fee, or commission or any finder's fees to any
broker, agent or finder on account of this Agreement or any matters
contemplated by it.
3.32 Bank Accounts and Safe Deposit Boxes. Set forth on Schedule 3.32
hereto are (a) the name, branch, account number, and purpose of any and
all bank accounts and/or securities brokerage accounts maintained by
CORPORATION together with the names of authorized signatories on each
such account, (b) the amounts and terms of each compensating balance
and the reasons therefor, and (c) the location of any and all safe
deposit boxes maintained by CORPORATION together with the names of the
persons with authorized access thereto. All SHAREHOLDER and
CORPORATION'S employees except as shall be designated at Closing shall
be removed as signatories thereon or thereto.
11
3.33 Books and Records. The books of account, stock record books and
minute books and other corporate records of CORPORATION are in all
material respects complete and correct, have been maintained in
accordance with good business practices and the matters contained
therein are accurately reflected, to the extent appropriate, on the
Financial Statement. The articles of incorporation and bylaws and all
amendments thereto of CORPORATION, and the minutes books and stock
books of CORPORATION have been made available to BUYER and are correct
and complete to the date hereof. All of such records shall remain the
property of CORPORATION after Closing and shall be delivered into the
possession of BUYER on or before that date.
3.34 Securities Registration. The CORPORATION Stock is not registered
nor required to be registered under Section 12(a) of the Securities
Exchange Act of 1934, as amended.
3.35 Governmental Consent. No governmental permits, consents, filings,
registrations, or qualifications are necessary to effect the
transaction contemplated hereby.
3.36 Full Disclosure. CORPORATION and SHAREHOLDER shall provide full
and unrestricted access to all financial records of CORPORATION to
BUYER. No representation or warranty by CORPORATION, or the SHAREHOLDER
in this Agreement, or in any certificate, exhibit, schedule or other
document furnished or to be furnished by CORPORATION, or the
SHAREHOLDER pursuant hereto, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to make the statements contained therein not misleading.
3.37 Absence of Certain Conditions. Since the date of the Financial
Statements in Schedule 3.7 (other than as disclosed in the Adjusted
Balance Sheet set forth on Schedule 3.10.1), CORPORATION did not:
3.37.1 Mortgage, pledge, or subject to lien, lease, security
interest or other charge or encumbrance any of the properties
or assets of CORPORATION.
3.37.2 Transfer, sell or dispose of any of the assets or
properties of CORPORATION, except in the ordinary and usual
course of business.
3.37.3 Incur, create, assume and guarantee any indebtedness,
liabilities, or obligations other than (a) in the usual and
ordinary course of business and with a maturity date of less
than one year or (b) that are incurred pursuant to contracts
disclosed in the Schedule delivered pursuant hereto.
3.37.4 Enter into any contract or commitment or engage in any
transaction which is not in the usual and ordinary course of
business or which is inconsistent with past practices.
3.37.5 Make any material capital expenditure or enter into any
lease of capital equipment or real estate, other than a lease
for _____ .
3.37.6 Enter into any contract, other than in the ordinary
course of business, which is to be performed in more than
thirty (30) days, other than those described in writing to
BUYER.
12
3.37.7 Forgive or cancel any debts or claims or waive any
rights except in the ordinary course of business.
3.37.8 Increase the rate of compensation to any officers,
agents, or employees of CORPORATION.
3.37.9 Make any payments of severance of termination pay.
3.37.10 Enter into or amend any stock option, deferred
compensation, bonus, profit-sharing, incentive compensation
payment, pension, retirement, medical, hospitalization, life
insurance, other insurance, or other plan.
3.37.11 Enter into any employment contracts or collective
bargaining agreement.
3.37.12 Issue any additional shares of stock or other
securities.
3.37.13 Make any distribution to the SHAREHOLDER by way of
dividends, purchase of shares, or otherwise.
3.37.14 Make any amendments to or changes in its articles of
incorporation or bylaws.
3.37.15 Perform any act, or attempt to do any act, or permit
any act or omission to act, which will cause a breach of any
material contract, commitment or obligation to which
CORPORATION is a party.
3.38 Right to Negotiate Contracts of Employment. SHAREHOLDER and
CORPORATION agree that BUYER shall have the right to negotiate
contracts of employment with the current management and supervisory
personnel of CORPORATION.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
BUYER represents and warrants as follows: Neither BUYER nor
any of its employees has paid or agreed to pay any brokerage fee or
commission or any finder's fee to any broker, agent or finder on
account of this Agreement or any matters contemplated by him.
5. COVENANTS OF CORPORATION AND SHAREHOLDER.
CORPORATION and SHAREHOLDER jointly and severally agree that from and
after the date of this Agreement and until the Closing Date they will conduct
CORPORATION'S business subject to the following provisions and limitations:
13
5.1 Operation of Business. Without the prior written consent of BUYER,
CORPORATION will not:
5.1.1 Mortgage, pledge or subject to lien, lease, security
interest, or other charge or encumbrance any of the properties
or assets of CORPORATION.
5.1.2 Transfer, sell, or dispose of any of the assets or
properties of CORPORATION, except in the ordinary and usual
course of business.
5.1.3 Incur, create, assume or guarantee any indebtedness,
liabilities, or obligations other than (a) in the usual and
ordinary course of business and with a maturity date of less
than one year or (b) that are incurred pursuant to contracts
disclosed in the Schedule delivered pursuant hereto.
5.1.4 Enter into any contract or commitment or engage in any
transaction which is not in the usual and ordinary course of
business or which is inconsistent with past practices.
5.1.5 Make any material capital expenditure or enter into any
lease of capital equipment or real estate.
5.1.6 Forgive or cancel any debts or claims, or waive any
rights except in the ordinary course of business.
5.1.7 Increase the rate of compensation to the officers,
agents, or salaried employees, of CORPORATION.
5.1.8 Make any payments of severance or termination pay.
5.1.9 Enter into or amend any stock option, deferred
compensation, bonus, profit-sharing, incentive compensation
payment, pension, retirement, medical, hospitalization, life
insurance, other insurance, or other plan.
5.1.10 Enter into any employment contracts or collective
bargaining agreement.
5.1.11 Issue any additional shares of stock or other
securities.
5.1.12 Make any distribution to the SHAREHOLDER by way of
dividends, purchase of shares, or otherwise.
5.1.13 Make or institute any unusual or novel method of
transacting business or change any accounting procedures or
practice of its financial structure.
5.1.14 Make any amendments to or changes in its articles of
incorporation or bylaws.
14
5.1.15 Perform any act, or attempt to do any act, or permit
any act or omission to act, which will cause a breach of any
material contract commitment or obligation to which
CORPORATION is a party.
5.2 Preservation of Business. CORPORATION shall carry on its business
diligently and substantially in the same manner as heretofore conducted
and shall keep its business organizations intact, and its present
relationships with suppliers, contractors, and others having business
relations with it.
5.3 Insurance and Maintenance of Property. CORPORATION will cause all
property owned or leased by it to be insured against all ordinary and
insurable risks and will operate, maintain and repair all its property
in a careful, prudent and efficient manner.
5.4 Full Access. BUYER shall have full access at all reasonable times
to all premises, properties, books, records, contracts, tax records and
documents of CORPORATION and CORPORATION will furnish to BUYER any
information in respect of the business and affairs of CORPORATION as
BUYER may from time to time reasonably request. Such examination and
investigation by BUYER shall not affect the warranties and
representations of CORPORATION and the SHAREHOLDER contained in this
Agreement.
5.5 Books, Records and Financial Statements. CORPORATION shall maintain
its books and financial records in accordance with generally accepted
accounting principles consistently applied, and on a basis consistent
with the past practices of CORPORATION. Said books and financial
records shall fairly and accurately reflect the operations of
CORPORATION. CORPORATION shall furnish to BUYER as available, monthly
financial statements and operating reports applicable to the operations
of CORPORATION, all of which shall be prepared in accordance with
generally accepted accounting principles consistently applied and shall
present fairly the financial position and results of operations of
CORPORATION at the dates and for the periods indicated.
5.6 Participation in Like or Competing Business. For the consecutive
five (5) year period commencing with the date of Closing hereunder, and
so long as BUYER is not in default of its obligations as set forth in
Paragraph 1.3, SHAREHOLDER, individually or in conjunction with others,
shall not either directly or indirectly within a 3 mile radius of
0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, XX:
5.6.1 Engage as a director, officer, employee, partner,
employee SHAREHOLDER, or any other capacity, in any business
in competition with any business then being conducted by
BUYER:
5.6.2 Request any customers of any business then being
conducted by BUYER to curtail or cancel their business with
BUYER:
15
5.6.3 Disclose to any other person, firm or corporation any
trade, technical or technological secrets, any details of
organization or business affairs, any names of past or present
customers of BUYER or any other information relating to the
business of BUYER.
5.6.4 Solicit, canvass or accept any business or transaction
for any other person, firm or corporation or business similar
to any business of BUYER; or
5.6.5 Act or conduct himself in any manner which he shall have
reason to believe is inimical or contrary to the best interest
of BUYER.
SHAREHOLDER recognizes that immediate and irreparable damage will
result to BUYER if SHAREHOLDER breaches any of the terms and conditions of this
Section 6 and, accordingly, SHAREHOLDER hereby consents to the entry by any
court of competent jurisdiction of an injunction against him or restrain any
such breach, in addition to any other remedies or claims for money damages which
BUYER may see. SHAREHOLDER represents and warrants to BUYER his experience and
capabilities are such that he can obtain employment in business without
breaching the terms and conditions of this Section 5.6, and that his obligations
under the provisions of this Section 5.6 (and the enforcement thereof by
injunction or otherwise) will not prevent him from earning a livelihood.
6. COVENANTS OF CORPORATION, SHAREHOLDER AND BUYER.
6.1 Confidentiality. Each party to this Agreement covenants and agrees
with the other parties to hold in confidence all documents and
information concerning the other parties furnished to it in connection
with the transaction contemplated by this Agreement and not otherwise
available to it, and agrees to use such information only in connection
with such transaction. Each party further agrees not to release or
disclose such information to any other person, except its outside
accountants, attorneys, and consultants. If the transaction
contemplated by this Agreement shall not be consummated, such
confidence shall be maintained and such information shall not be used
in competition with any other party (except to the extent that such
information was previously known to such party, in the public domain,
or later acquired by such party from other legitimate sources) and all
such documents shall immediately thereafter be returned to the party
furnishing same.
6.2 Transition Period Advice. SHAREHOLDER shall make itself available
to BUYER for a period after Closing not to exceed thirty (30) days in
order to provide advice and information for the operation of the
business that is the subject of this Agreement.
6.3 Good Faith Efforts. Each party to this Agreement shall utilize his,
her, or its, respectively, best good faith efforts to carry out the
intents and purposes of this Agreement and to cure or correct any
unintentional deviations from this Agreement and to accomplish any of
the undertakings in this Agreement.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER TO CLOSE.
16
The obligations of BUYER to consummate the transactions contemplated by
this Agreement are subject to satisfaction of each of the following conditions
on or before the Closing Date, subject to the right of BUYER to waive any one or
more of such conditions:
7.1 Representations and Warranties of SHAREHOLDER and CORPORATION. The
representations and warranties of the SHAREHOLDER and CORPORATION
contained in this Agreement and in any certificate, exhibit, schedule
or other document delivered to BUYER pursuant to the provisions of this
Agreement or in connection with the transaction contemplated hereby
shall be true and correct on and as of the Closing Date as though such
representations and warranties were made on the Closing Date.
7.2 Performance of this Agreement. The SHAREHOLDER and CORPORATION
shall have performed and complied with all agreements and conditions
required by this Agreement to be performed or complied with by them
prior to or at the Closing.
7.3 Certificate. The SHAREHOLDER and CORPORATION shall have delivered
to BUYER a certificate, dated that Closing Date, certifying to the
fulfillment of the conditions specified in Paragraphs 7.1, 7.3, 7.7,
7.8 and 7.9 of this Agreement. Such certificate or certificates shall
be deemed a representation and warranty of the SHAREHOLDER and
CORPORATION hereunder.
7.4 N/A
7.5 Approval by Boards of Directors and Stockholder. The stockholder of
CORPORATION shall have approved and adopted this Agreement and the
transactions contemplated hereby to the extent required by law and by
the Articles of Incorporation and Bylaws of CORPORATION.
7.6 Secretary's Certificate. BUYER shall have received from the
Secretary of CORPORATION a certificate certifying the approval by the
Board of Directors and Stockholder of this Agreement and the
transactions contemplated hereby.
7.7 Material Adverse Change. There shall have been no material adverse
change, actual or threatened, in the properties, business or condition,
financial or otherwise, of CORPORATION, whether or not covered by
insurance, as a result of fire, flood, explosion, earthquake, disaster,
accident or other calamity, labor dispute, any action of the United
States or other governmental authority, riots, civil disturbance,
uprisings, activity of the Armed Forces, or act of God or the public
enemy.
7.8 No Lawsuits. No suit, action or other proceeding or investigation
shall be threatened or pending before or by any court or governmental
agency concerning this Agreement or the consummation of the
transactions contemplated hereby, or in connection with any material
claim against CORPORATION not disclosed on the Schedules hereto. No
governmental agency shall have threatened or directed any request for
information concerning this Agreement, the transaction contemplated
hereby, or the consequences or implications of such transaction to the
SHAREHOLDER, CORPORATION, or BUYER, or any officer, director employee
or agent of any of them.
17
7.9 No Restriction. There shall not exist any conditions, restrictions
or reservations affecting the title to or utility of the assets or
property of CORPORATION which would prevent them from occupying and
utilizing said assets and property, or any part thereof, to the same
full extent that they might continue to do so if the Transfer
contemplated hereby did not take place.
7.10 Audit and Investigation. BUYER shall have the absolute right to
have audits performed by their accountant(s) of all financial records,
tax returns, bank statements, audit reports and all other materials
relating to the conduct and operation of CORPORATION. BUYER shall be
reasonably satisfied with the results of any audit and investigation of
CORPORATION undertaken by them between the date of this Agreement and
the Closing Date.
7.11 Governmental Approvals. BUYER shall have obtained the approval or
consent of such government agencies or bodies, domestic or foreign, as
BUYER shall deem reasonably necessary in connection with the
consummation of the Transfer.
7.12 Approval of Counsel. The validity of the transactions herein
contemplated and the form and substance of all stock certificates,
powers of attorney, opinions, instruments, closing documents and other
documents or certificates to be delivered by CORPORATION hereunder
shall be satisfactory to counsel for BUYER.
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SHAREHOLDER TO CLOSE.
The obligations of the SHAREHOLDER to consummate the transactions
contemplated by this Agreement are subject to satisfaction of each of the
following conditions on or before the Closing Date, subject to the right of the
SHAREHOLDER to waive any one or more such conditions:
8.1 Representations and Warranties of BUYER. The representations and
warranties of BUYER contained in this Agreement and in any certificate,
exhibit, schedule or other document delivered to the SHAREHOLDER
pursuant to the provisions of this Agreement or in connection with the
transactions contemplated hereby shall be true and correct on and as of
the Closing Date as though such representations and warranties were
made on the Closing Date.
8.2 Performance of this Agreement. BUYER shall have performed and
complied with all agreements and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing.
18
8.3 Certificate of Officers. BUYER shall have delivered to the
SHAREHOLDER a certificate, dated the Closing Date, certifying to the
fulfillment of the conditions specified in Paragraphs 8.1 and 8.2 of
this Agreement. Such certificate shall be deemed a representation and
warranty of BUYER.
8.4 No Lawsuits. No suit, action or other proceeding or investigation
shall be threatened or pending before or by any court or governmental
agency concerning this Agreement or the consummation of the
transactions contemplated hereby, or in connection with any material
claim against BUYER not disclosed on the Schedules hereto. No
governmental agency shall have threatened or directed any request for
information concerning this Agreement, the transaction contemplated
hereby, or the consequences or implications of such transaction to the
SHAREHOLDER, or BUYER, or any officer, director, employee or agent of
any of them.
8.5 Approval of Counsel. The validity of the transactions herein
contemplated and the form and substance of all opinions, instruments,
Closing documents and other documents or certificates to be delivered
by BUYER hereunder and of such other documents or opinions as shall
reasonably be determined by SHAREHOLDER's counsel as necessary to carry
out the intent and purposes of this Agreement shall have been delivered
prior to Closing and shall be satisfactory to counsel for SHAREHOLDER.
9. INDEMNIFICATION; SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
9.1 Survival of Warranties and Representations. All representations,
warranties and agreements of BUYER, CORPORATION and SHAREHOLDER made
under or pursuant to this Agreement shall survive the Closing Date
without limitation as to time.
9.2 Indemnification. The SHAREHOLDER hereby covenants and agrees to
indemnify and hold harmless BUYER from and against any and all loss,
liability damage or expense (including, but not limited to, reasonable
attorney's fees incident thereto) arising out of, or resulting from,
any misrepresentation or the breach of any warranty, representation or
covenant made by CORPORATION or SHAREHOLDER in this Agreement, the
Schedules hereto and any and all written statements, certificates,
instruments and documents delivered to BUYER pursuant to this Agreement
on or before the Closing Date. The SHAREHOLDER hereby covenants and
agrees to indemnify BUYER against any and all liabilities of
CORPORATION of any nature, whether accrued, absolute, contingent or
otherwise, to the extent not reflected in the Financial Statement
attached hereto as Schedule 3.7, including all tax liabilities, for any
period prior to the date of Closing or arising out of transactions
entered into, and any stated facts existing, prior to such date. The
SHAREHOLDER hereby covenants and agrees to indemnify and hold harmless
BUYER from and against any and all loss, liability, damage or expense
(including but not limited to, reasonable attorney's fees incident
thereto) arising out of, or resulting from, the content or operations
of the business of CORPORATION and all of its business equipment up to
the date of closing on the purchase and sale of stock provided for in
this agreement.
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9.3 Remedies.
9.3.1 Reduction in Payment. In the event that at any time on
or prior to the dates of payments pursuant to the Promissory
Note, BUYER shall determine that: Any tax, penalty or interest
has been or may be assessed against CORPORATION or BUYER as
transferee of the CORPORATION stock arising out of or relating
to the conduct of CORPORATION'S business or SHAREHOLDER'S
activities prior to Closing; BUYER may withdraw its guarantee
of a commensurate amount of the indebtedness of SHAREHOLDER to
CDB Finance, in an amount equal to the amount reasonably
necessary to cure such material default, or to settle any such
taxes, penalties and interest or to pay or otherwise discharge
any such obligations or liabilities. Said reduction to be
carried out in accordance with the terms and provisions set
forth in paragraph 9.3.2.
9.3.2 Procedure for Reduction. In the event BUYER determines
to reduce the guarantee commitment, BUYER shall promptly give
notice of such intended reduction to SHAREHOLDER, whereupon
BUYER shall be free to reduce the guarantee with respect to
the Notes. Nothing contained herein is intended or shall be
construed so as to limit the remedies which either party may
have against the other in the event of a breach by either
party of any representation, warranty or agreement made under
or pursuant to this Agreement it being intended that any
remedies shall be cumulative and non-exclusive.
9.3.3 In the event that any claim is made against BUYER for
any matter for which SHAREHOLDER has agreed to indemnify BUYER
per the terms of Paragraph 9.2 of this Agreement, the
SHAREHOLDER shall have the right to defend such claim. BUYER
agrees to provide SHAREHOLDER, at SHAREHOLDER'S expense, with
all material and information in BUYER'S possession reasonably
necessary to the defense of any such claim by SHAREHOLDER.
BUYER shall give SHAREHOLDER notice of any such claim with
reasonable promptness. In the event of litigation, such notice
shall be in writing and sent to SHAREHOLDER within ten (10)
days of receipt of the Complaint by BUYER. SHAREHOLDER shall
notify BUYER in writing with reasonable promptness (and in the
event of litigation, within five (5) days of receipt of the
aforesaid notice of litigation) as to whether SHAREHOLDER
intends to contest such claim or liability. In the interim,
BUYER shall take any action it deems appropriate with respect
to such claim to protect against default. If SHAREHOLDER does
not move to contest or defend any claims as required herein,
then upon such failure to do so, BUYER shall have the same
right of set off and reduction in promissory note payments as
provided hereinbefore in Paragraphs 9.3.1 and 9.3.2 for tax
liabilities.
10. TERMINATION.
20
10.1 Termination by SHAREHOLDER. The SHAREHOLDER may terminate this
Agreement by giving written notice to BUYER at any time prior to the
Closing if a condition to the performance of the SHAREHOLDER hereunder
shall not be fulfilled on or before the date specified for the
fulfillment thereof or if a material default under or a material breach
of this Agreement shall be made by BUYER.
10.2 Termination by BUYER. BUYER may terminate this Agreement by giving
written notice to the SHAREHOLDER at any time prior to the Closing if a
condition to the performance of BUYER hereunder shall not be fulfilled
on or before the date specified for the fulfillment thereof or if a
material default under or a material breach of this Agreement of a
material misstatement, error or omission in any representation or
warranty set forth herein or in any certificate, exhibit, schedule or
other document furnished by the SHAREHOLDER pursuant hereto shall occur
or be made by the SHAREHOLDER.
10.3 In the Event of Termination. In the event of the termination and
abandonment of the closing of this transaction pursuant to the
provisions of this Paragraph 10, this Agreement shall become void and
have no effect, without any liability on the part of any party or the
directors, officers or stockholders of BUYER, the SHAREHOLDER or
CORPORATION except for the provisions contained in the last sentence of
Paragraph 6.1 and in Paragraph 11.3 hereof; provided, however, that if
any party hereto willfully fails to perform its obligations herein, any
other party may seek any available legal or equitable remedies in
addition to those provided herein. The parties hereto shall have the
right to seek specific performance hereof.
11. MISCELLANEOUS.
11.1 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or mailed first-class postage prepaid:
11.1.1 to CORPORATION: Pre-closing: to SHAREHOLDER
Post-closing: to BUYER
11.1.2 to SHAREHOLDER: Xxxxx X. Xxxx
Red Xxxx Brewing Co.
Jefferson St.
Philadelphia, PA
11.1.3 to BUYER: Xxxxxx Xxxxx
Manayunk Ventures, Inc.
Jenkintown, PA
or to such other address or to such other person as the parties shall
have last designated by notice to the other parties.
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11.2 Successors and Assigns; Entire Agreement; Modification. This
Agreement shall be binding upon and inure to the benefit of the
respective parties hereto and their respective assigns, successors,
heirs, executors, and administrators. This Agreement contains the
entire agreement between the parties hereto with respect to the
transactions contemplated herein and shall not be modified or amended
except by an instrument in writing signed by or on behalf of the
parties hereto. However, at any time prior to the Closing Date, either
the SHAREHOLDER, or BUYER may:
11.2.1 extend the time for the performance of any obligations
or other acts of the other of them;
11.2.2 waive any inaccuracies by the other in the
representations and warranties contained herein or in any
document delivered pursuant hereto; and
11.2.3 waive compliance with any of the agreements or
conditions contained herein to be performed by the other.
11.3 Expenses. The Parties hereto shall pay their own expenses incident
to the preparation and execution of this Agreement and the consummation
of the transactions contemplated hereby. CORPORATION shall bear none of
such expenses. CORPORATION shall have no liability or responsibility
for payment of any finders' fee or brokers' commissions arising from
this transaction.
11.4 Governing Law; Unenforceability. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania without giving effect to its conflicts of
laws provisions.
11.5 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
11.6 Headings. The paragraph headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or
affect any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first hereinabove written.
WITNESS:
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxx, President (SEAL)
--------------------------- ------------------------------
BUYER
Manayunk Ventures, Inc.
___________________________ /s/ Xxxxx X. Xxxx, President (SEAL)
----------------------------
SHAREHOLDER
President, Red Xxxx Brewery &
Pub-Manayunk
___________________________ /s/ Xxxxx X. Xxxxxx, Director (SEAL)
-----------------------------
CORPORATION
Director Red Xxxx Brewing Co.
22
