STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE By and among El Maniel International, Inc. A Nevada Corporation And El Maniel Cigar Company A Nevada Corporation Effective as of September 28, 2007
By
and
among
El
Maniel
International, Inc.
A
Nevada
Corporation
And
El
Maniel
Cigar Company
A
Nevada
Corporation
Effective
as of September 28, 2007
1
THIS
STOCK PURCHASE AGREEMENT AND
SHARE EXCHANGE, made and entered into this 28th day of September, 2007,
by and among El Maniel International, Inc., a Nevada corporation with its
principal place of business located at 0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxx
XX
00000 ("EMI"); El Maniel Cigar Company, a Nevada Corporation with its principal
place of business at 0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxx XX 00000
("EMC").
Premises
A. This
Agreement provides for the
acquisition of EMC whereby EMC shall become a wholly owned subsidiary of EMI
and
in connection therewith
B. The
boards of directors
of EMI and EMC have determined, subject to the terms and conditions set forth
in
this Agreement, that the transactioncontemplated hereby is desirable and in
the
best interests of their stockholders, respectively. This Agreement is being
entered into for the purpose of setting forth the terms and conditions of the
proposed acquisition.
Agreement
NOW,
THEREFORE, on the stated premises and for and in consideration of the mutual
covenants and agreements hereinafter set forth and the mutual benefits to the
parties to be derived here from, it is hereby agreed as follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
EL
MANIEL INTERNATIONAL, INC.
As
an inducement to and to obtain the
reliance of EMC, EMI represents and warrants as follows:
Section
1.1 Organization.
EMI
is a corporation duly organized, validly existing, and in good standing under
the laws of Nevada and has the corporate power and is duly authorized,
qualified, franchised and licensed under all applicable laws, regulations,
ordinances and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being
conducted, including qualification to do business as a foreign corporation
in
the jurisdiction in which the character and location of the assets owned by
it
or the nature of the business transacted by it requires
qualification. Included in the Schedules attached hereto (hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not violate any provision of Holding's articles of incorporation or
bylaws. EMI has full power, authority and legal right and has taken
all action required by law, its articles of incorporation, its bylaws or
otherwise to authorize the execution and delivery of this
Agreement.
Section
1.2 Capitalization. The
authorized capitalization of EMI consists of 100,000,000 Common Shares, $0.001
par value per share, 10,000,000 Preferred Shares, $0.001 par value per
share. As of the date hereof, EMI has no common shares issued
and outstanding.
2
All
issued and outstanding shares are
legally issued, fully paid and nonassessable and are not issued in violation
of
the preemptive or other rights of any person. EMI has no securities,
warrants or options authorized or issued.
Section
1.3 Subsidiaries. EMI
has no subsidiaries.
Section
1.4 Tax Matters:
Books and Records.
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(a)
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The
books and records, financial and others, of EMI are in all material
respects complete and correct and have been maintained in accordance
with
good business accounting practices; and
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(b)
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EMI
has no liabilities with respect to the payment of any country, federal,
state, county, or local taxes (including any deficiencies, interest
or
penalties).
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(c)
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EMI
shall remain responsible for all debts incurred by EMI prior to the
date
of closing.
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Section
1.5 Litigation
and
Proceedings. There are no actions, suits, proceedings or
investigations pending or threatened by or against or affecting EMI or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign or before any arbitrator of any kind
that would have a material adverse affect on the business, operations, financial
condition or income of EMI. EMI is not in default with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
Section
1.6 Material
Contract
Defaults. EMI is not in default in any material respect under
the terms of any outstanding contract, agreement, lease or other commitment
which is material to the business, operations, properties, assets or condition
of EMI, and there is no event of default in any material respect under any
such
contract, agreement, lease or other commitment in respect of which EMI has
not
taken adequate steps to prevent such a default from occurring.
Section
1.7 Information. The information
concerning EMI as set forth in this Agreement and in the attached Schedules
is
complete and accurate in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact required to make
the statements made in light of the circumstances under which they were made,
not misleading.
Section
1.8 Title and Related
Matters. EMI has good and marketable title to and is the sole
and exclusive owner of all of its properties, inventory, interest in properties
and assets, real and personal (collectively, the “Assets”) free and clear of all
liens, pledges, charges or encumbrances. EMI owns free and clear of
any liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized
in
connection with EMI business. No third party has any right to,
and EMI has not received any notice of infringement of or conflict with asserted
rights of other with respect to any product, technology, data, trade secrets,
know-how, proprietary techniques, trademarks, service marks, trade names or
copyrights which, singly on in the aggregate, if the subject of an unfavorable
decision ruling or finding, would have a materially adverse affect on the
business, operations, financial conditions or income of EMI or any material
portion of its properties, assets or rights.
3
Section 1.9 Contracts On the closing date:
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(a)
|
There
are no material contracts, agreements franchises, license agreements,
or
other commitments to which EMI is a party or by which it or any of
its
properties are bound:
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(b)
|
EMI
is not a party to any contract, agreement, commitment or instrument
or
subject to any charter or other corporate restriction or any judgment,
order, writ, injunction, decree or award materially and adversely
affects,
or in the future may (as far as EMI can now foresee) materially and
adversely affect, the business, operations, properties, assets or
conditions of EMI; and
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(c)
|
EMI
is not a party to any material oral or written: (I) contract for
the
employment of any officer or employee; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension benefit
or
retirement plan, agreement or arrangement covered by Title IV of
the
Employee Retirement Income Security Act, as amended; (iii) agreement,
contract or indenture relating to the borrowing of money; (iv) guaranty
of
any obligation for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties, of obligations,
which, in the aggregate exceeds $1,000; (v) consulting or other contract
with an unexpired term of more than one year or providing for payments
in
excess of $10,000 in the aggregate; (vi) collective bargaining agreement;
(vii) contract, agreement or other commitment involving payments
by it for
more than $10,000 in the aggregate.
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Section 1.10 Compliance
With Laws and Regulations. To the best of EMI’s
knowledge and belief, EMI has complied with all applicable statutes and
regulations of any federal, state or other governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition
of
EMI or would not result in EMI incurring material liability.
Section
1.11 Insurance. All
of the insurable properties of EMI are insured for EMI‘s benefit under valid and
enforceable policy or policies containing substantially equivalent coverage
and
will be outstanding and in full force at the Closing Date.
Section
1.12 Approval of
Agreement. The directors of EMI have authorized the execution
and delivery of the Agreement by and have approved the transactions contemplated
hereby.
Section
1.13 Material Transactions or
Affiliations. There are no material contracts or agreements of
arrangement between EMI and any person, who was at the time of such contract,
agreement or arrangement an officer, director or person owning of record, or
known to beneficially own ten percent (10%) or more of the issued and
outstanding Common Shares of EMI and which is to be performed in whole or in
part after the date hereof. EMI has no commitment, whether written or
oral, to lend any funds to, borrow any money from or enter into material
transactions with any such affiliated person.
Section
1.14 No
Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust or other material
contract, agreement or instrument to which EMI is a party or to which any of
its
properties or operations are subject.
4
Section
1.15 Governmental
Authorizations. EMI has all licenses, franchises,
permits or other governmental authorizations legally required to enable it
to
conduct its business in all material respects as conducted on the date hereof.
Except for compliance with federal and state securities and corporation laws,
as
hereinafter provided, no authorization, approval, consent or order of, or
registration, declaration or filing with, any court or other governmental body
is required in connection with the execution and delivery by EMI of this
Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
El
Maniel Cigar Company
As
an inducement to, and to obtain the
reliance of EMI, EMC represents and warrants as follows:
Section
2.1 Organization. EMC
is a corporation duly organized, validly existing and in good standing under
the
laws of Nevada and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances
and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign entity in the country or
states in which the character and location of the assets owned by it or the
nature of the business transacted by it requires qualification. Included in
the
Attached Schedules (as hereinafter defined) are complete and correct copies
of
the articles of incorporation, bylaws and amendments thereto as in effect on
the
date hereof. The execution and delivery of this Agreement does not and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of EMC's certificate
of
incorporation or bylaws. EMC has full power, authority and legal right and
has
taken all action required by law, its articles of incorporation, bylaws or
otherwise to authorize the execution and delivery of this
Agreement.
Section
2.2 Capitalization. The
authorized capitalization of EMC consists of 100,000,000 Common Shares, $0.001
par value per share and 10,000,000 Preferred Shares, par value
$0.001. As of the date of the merger agreement, 100,000 shares of
common shares were outstanding.
All
issued and outstanding common
shares have been legally issued, fully paid, are nonassessable and not issued
in
violation of the preemptive rights of any other person. EMC has no
other securities, warrants or options authorized or issued.
Section
2.3 Subsidiaries. EMC
has no
subsidiaries.
Section
2.4 Tax Matters;
Books & Records
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(a)
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The
books and records, financial and others, of EMC are in all material
respects complete and correct and have been maintained in accordance
with
good business accounting practices; and
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(b)
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EMC
has no liabilities with respect to the payment of any country, federal,
state, county, local or other taxes (including any deficiencies,
interest
or penalties).
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(c)
|
EMC
shall remain responsible for all debts incurred prior to the closing.
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5
Section
2.5 Information. The
information concerning EMC as set forth in this Agreement and in the attached
Schedules is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading.
Section
2.6 Title
and Related
Matters. EMC has good and marketable title to and is the sole
and exclusive owner of all of its properties, inventory, interests in properties
and assets, real and personal (collectively, the "Assets") free and clear of
all
liens, pledges, charges or encumbrances. Except as set forth in the Schedules
attached hereto, EMC owns free and clear of any liens, claims, encumbrances,
royalty interests or other restrictions or limitations of any nature whatsoever
and all procedures, techniques, marketing plans, business plans, methods of
management or other information utilized in connection with EMC's business.
Except as set forth in the attached Schedules, no third party has any right
to,
and EMC has not received any notice of infringement of or conflict with asserted
rights of others with respect to any product, technology, data, trade secrets,
know-how, proprietary techniques, trademarks, service marks, trade names or
copyrights which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse affect on the
business, operations, financial conditions or income of EMC or any material
portion of its properties, assets or rights.
Section
2.7 Litigation
and
Proceedings. There are no actions, suits or proceedings
pending or threatened by or against or affecting EMC, at law or in equity,
before any court or other governmental agency or instrumentality, domestic
or
foreign or before any arbitrator of any kind that would have a material adverse
effect on the business, operations, financial condition, income or business
prospects of EMC. EMC does not have any knowledge of any default on
its part with respect to any judgment, order, writ, injunction, decree, award,
rule or regulation of any court, arbitrator or governmental agency or
instrumentality.
Section
2.8 Contracts. On
the
Closing Date:
(a) There
are no material
contracts, agreements, franchises, license agreements, or other commitments
to
which EMC is a party or by which it or any of its properties are
bound;
(b) EMC
is not a party to any
contract, agreement, commitment or instrument or subject to any charter or
other
corporate restriction or any judgment, order, writ, injunction, decree or award
which materially and adversely affects, or in the future may (as far as EMC
can
now foresee) materially and adversely affect, the business, operations,
properties, assets or conditions of EMC; and
(c) EMC
is not a party to any
material oral or written: (i) contract for the employment of any
officer or employee; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension, benefit or retirement plan,
agreement or arrangement covered by Title IV of the Employee Retirement Income
Security Act, as amended; (iii) agreement, contract or indenture relating to
the
borrowing of money; (iv) guaranty of any obligation for the borrowing
of money or otherwise, excluding endorsements made for collection and other
guaranties of obligations, which, in the aggregate exceeds
$1,000; (v) consulting or other contract with an unexpired
term of more than one year or providing for payments in excess of $10,000 in
the
aggregate; (vi) collective bargaining agreement;
(vii) contract, agreement, or other commitment involving
payments by it for more than $10,000 in the aggregate.
6
Section
2.9 No
Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust or other material
contract, agreement or instrument to which EMC is a party or to which any of
its
properties or operations are subject.
Section
2.10 Material
Contract
Defaults. To the best of EMC's knowledge and belief, it is not
in default in any material respect under the terms of any outstanding contract,
agreement, lease or other commitment which is material to the business,
operations, properties, assets or condition of EMC, and there is no event of
default in any material respect under any such contract, agreement, lease or
other commitment in respect of which EMC has not taken adequate steps to prevent
such a default from occurring.
Section
2.11 Governmental
Authorizations. To the best of EMC’s knowledge, EMC has
all licenses, franchises, permits and other governmental authorizations that
are
legally required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with
federal and state securities or corporation laws, no authorization, approval,
consent or order of, or registration, declaration or filing with, any court
or
other governmental body is required in connection with the execution and
delivery by EMC of the transactions contemplated hereby.
Section
2.12 Compliance
With Laws and
Regulations. To the best of EMC's knowledge and belief, EMC has
complied with all applicable statutes and regulations of any federal, state
or
other governmental entity or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets or condition of EMC or would not result in EMC's
incurring any material liability.
Section
2.13 Insurance. All
of
the insurable properties of EMC are insured for EMC‘s benefit under valid and
enforceable policy or policies containing substantially equivalent coverage
and
will be outstanding and in full force at the Closing Date.
Section
2.14 Approval
of
Agreement. The directors of EMC have authorized the execution and
delivery of the Agreement and have approved the transactions contemplated
hereby.
Section
2.15 Material
Transactions or
Affiliations. As of the Closing Date, there will exist no
material contract, agreement or arrangement between EMC and any person who
was
at the time of such contract, agreement or arrangement an officer, director
or
person owning of record, or known by EMC to own beneficially, ten percent (10%)
or more of the issued and outstanding Common Shares of EMC and which is to
be
performed in whole or in part after the date hereof except with regard to an
agreement with the EMC shareholders providing for the distribution of cash
to
provide for payment of federal and state taxes on Subchapter S income. EMC
has
no commitment, whether written or oral, to lend any funds to, borrow any money
from or enter into any other material transactions with, any such affiliated
person.
7
ARTICLE
III
EXCHANGE
PROCEDURE AND OTHER CONSIDERATION
Section
3.1 Share
Exchange/Delivery of EMC
Securities. On the Closing Date, the holders of all of the EMC
Common Shares shall deliver to EMI (i) certificates or other documents
evidencing all of the issued and outstanding EMC Common Shares, duly endorsed
in
blank or with executed power attached thereto in transferable form. On the
Closing Date, all previously issued and outstanding Common Shares of EMC shall
be transferred to EMI, so that EMC shall become a wholly owned subsidiary of
EMI.
Section
3.2 Issuance of EMC Common
Shares. In exchange for EMI acquiring all of the EMC Common
Shares tendered pursuant to Section 3.1, EMI shall issue 5,000,000 shares to
Xxxxxxx Xxxxxx the sold shareholder of EMC. Such shares are
restricted in accordance with Rule 144 of the 1933 Securities Act.
Section
3.3 Events
Prior to
Closing. Upon execution hereof or as soon thereafter as
practical, management of EMI and EMC shall execute, acknowledge and deliver
(or
shall cause to be executed, acknowledged and delivered) any and all
certificates, opinions, financial statements, schedules, agreements, resolutions
rulings or other instruments required by this Agreement to be so delivered,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence
the
transactions contemplated hereby, subject only to the conditions to Closing
referenced herein below. In addition, prior to Closing, EMC shall
provide EMI with updated audited financial statements to be filed with EMI’s
Form 8-K filing with the SEC within three (3) days of Closing.
Section
3.4 Closing. The
closing
("Closing") of the transactions contemplated by this Agreement shall be
September 28, 2007.
Section
3.5 Termination.
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(a)
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This
Agreement may be terminated by the board of directors or majority
interest
of Shareholders of either EMI or EMC, respectively, at any time prior
to
the Closing Date if:
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(i)
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there
shall be any action or proceeding before any court or any governmental
body which shall seek to restrain, prohibit or invalidate the transactions
contemplated by this Agreement and which, in the judgment of such
board of
directors, made in good faith and based on the advice of its legal
counsel, makes it inadvisable to proceed with the exchange contemplated
by
this Agreement; or
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(ii)
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any
of the transactions contemplated hereby are disapproved by any regulatory
authority whose approval is required to consummate such transactions.
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In
the event
of termination pursuant to this paragraph (a) of this Section 3.5, no
obligation, right, or liability shall arise hereunder and each party shall
bear
all of the expenses incurred by it in connection with the negotiation, drafting
and execution of this Agreement and the transactions herein
contemplated.
8
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(b)
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This
Agreement may be terminated at any time prior to the Closing Date
by
action of the board of directors of EMI if EMC shall fail to comply
in any
material respect with any of its covenants or agreements contained
in this
Agreement or if any of the representations or warranties of EMC contained
herein shall be inaccurate in any material respect, which noncompliance
or
inaccuracy is not cured after 20 days written notice thereof is given
to
EMC. If this Agreement is terminated pursuant to this paragraph (b)
of
this Section 3.5, this Agreement shall be of no further force or
effect
and no obligation, right or liability shall arise hereunder.
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(c)
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This
Agreement may be terminated at any time prior to the Closing Date
by
action of the board of directors of EMC if EMI shall fail to comply
in any
material respect with any of its covenants or agreements contained
in this
Agreement or if any of the representations or warranties of EMI contained
herein shall be inaccurate in any material respect, which noncompliance
or
inaccuracy is not cured after 20 days written notice thereof is given
to
EMI. If this Agreement is terminated pursuant to this paragraph (d)
of
this Section 3.5, this Agreement shall be of no further force or
effect
and no obligation, right or liability shall arise hereunder.
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In
the event
of termination pursuant to paragraph (b) and (c) of this Section 3.5, the
breaching party shall bear all of the expenses incurred by the other party
in
connection with the negotiation, drafting and execution of this Agreement and
the transactions herein contemplated.
Section
3.6 Directors
of EMI After
Acquisition. After the Closing Date, Xxxxxxx Xxxxxx shall
remain the only member of the Board of Directors of EMI. Each
director shall hold office until his successor shall have been duly elected
and
shall have qualified or until his earlier death, resignation or
removal.
Section
3.7 Officers
of EMI.
Upon the closing, the following persons shall remain the
officers of EMI:
| NAME | OFFICE |
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Xxxxxxx
Xxxxxx
|
Chief
Executive Officer, President
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ARTICLE
IV
SPECIAL
COVENANTS
Section
4.1 Access
to Properties and
Records. Prior to closing, EMI and EMC will each
afford to the officers and authorized representatives of the other full access
to the properties, books and records of each other, in order that each may
have
full opportunity to make such reasonable investigation as it shall desire to
make of the affairs of the other and each will furnish the other with such
additional financial and operating data and other information as to the business
and properties of each other, as the other shall from time to time reasonably
request.
Section
4.2 Availability
of Rule
144. EMI and EMC shareholders holding "restricted securities,”
as that term is defined in Rule 144 promulgated pursuant to the Securities
Act
will remain as “restricted securities”. EMI is under no obligation to
register such shares under the Securities Act, or otherwise.
9
The
stockholders of EMI and EMC holding restricted securities of EMI and EMC as
of
the date of this Agreement and their respective heirs, administrators, personal
representatives, successors and assigns, are intended third party beneficiaries
of the provisions set forth herein. The covenants set forth in this
Section 4.2 shall survive the Closing and the consummation of the transactions
herein contemplated.
Section
4.3 Special
Covenants and Representations
Regarding the EMI Common Shares to be Issued in the
Exchange. The consummation of this Agreement, including the
issuance of the EMI Common Shares to the Shareholders of EMC as contemplated
hereby, constitutes the offer and sale of securities under the Securities Act,
and applicable state statutes. Such transaction shall be consummated
in reliance on exemptions from the registration and prospectus delivery
requirements of such statutes which depend, inter alia, upon the circumstances
under which the EMC Shareholders acquire such securities.
Section
4.4 Third
Party
Consents. EMI and EMC agree to cooperate with each other
in order to obtain any required third party consents to this Agreement and
the
transactions herein contemplated.
Section
4.5 Actions
Prior and Subsequent to
Closing.
(a) From
and after the date of this
Agreement until the Closing Date, except as permitted or contemplated by this
Agreement, EMI and EMC will each use its best efforts to:
(i) maintain
and keep its
properties in states of good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due to
casualty;
(ii) maintain
in full force
and effect insurance comparable in amount and in scope of coverage to that
now
maintained by it;
(iii) perform
in all material
respects all of its obligations under material contracts, leases and instruments
relating to or affecting its assets, properties and business;
(b) From
and after the date of this
Agreement until the Closing Date, EMI will not, without the prior consent of
EMC:
(i)
except as otherwise specifically set forth herein, make any change in its
articles of incorporation or bylaws;
(ii)
declare or pay any dividend on its outstanding Common Shares, except as may
otherwise be required by law, or effect any stock split or otherwise change
its
capitalization, except as provided herein;
(iii) enter
into or amend any employment, severance or agreements or arrangements with
any
directors or officers;
(iv) grant,
confer or award any options, warrants, conversion rights or other rights not
existing on the date hereof to acquire any Common Shares; or
(v)
purchase or redeem any Common Shares.
Section
4.6 Indemnification.
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(a)
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EMI
hereby agrees to indemnify EMC, each of the officers, agents and
directors
and current shareholders of EMC as of the Closing Date against any
loss,
liability, claim, damage or expense (including, but not limited to,
any
and all expense whatsoever reasonably incurred in investigating,
preparing
or defending against any litigation, commenced or threatened or any
claim
whatsoever), to which it or they may become subject to or rising
out of or
based on any inaccuracy appearing in or misrepresentation made in
this
Agreement. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated
hereby and termination of this Agreement; and
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10
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(b)
|
EMC
hereby agrees to indemnify EMI, each of the officers, agents, directors
and current shareholders of EMI as of the Closing Date against any
loss,
liability, claim, damage or expense (including, but not limited to,
any
and all expense whatsoever reasonably incurred in investigating,
preparing
or defending against any litigation, commenced or threatened or any
claim
whatsoever), to which it or they may become subject arising out of
or
based on any inaccuracy appearing in or misrepresentation made in
this
Agreement. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated
hereby and termination of this Agreement.
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ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF EMI
The
obligations of EMI under this
Agreement are subject to the satisfaction, at or before the Closing Date, of
the
following conditions:
Section
5.1 Accuracy
of
Representations. The representations and warranties made by
EMI in this Agreement were true when made and shall be true at the Closing
Date
with the same force and effect as if such representations and warranties were
made at the Closing Date (except for changes therein permitted by this
Agreement), and EMI shall have performed or compiled with all covenants and
conditions required by this Agreement to be performed or complied with by EMI
prior to or at the Closing. EMC shall be furnished with a
certificate, signed by a duly authorized officer of EMI and dated the Closing
Date, to the foregoing effect.
Section
5.2 Director
Approval. The Board of Directors of EMI shall have approved
this Agreement and the transactions contemplated herein.
Section
5.3 Officer's
Certificate. EMC shall have been furnished with a certificate dated
the Closing Date and signed by a duly authorized officer of EMI to the effect
that: (a) the representations and warranties of EMI set forth in the Agreement
and in all Exhibits, Schedules and other documents furnished in connection
herewith are in all material respects true and correct as if made on the
Effective Date; (b) EMI has performed all covenants, satisfied all conditions,
and complied with all other terms and provisions of this Agreement to be
performed, satisfied or complied with by it as of the Effective Date; (c) since
such date and other than as previously disclosed to EMC, EMI has not entered
into any material transaction other than transactions which are usual and in
the
ordinary course if its business; and (d) no litigation, proceeding,
investigation or inquiry is pending or, to the best knowledge of EMI,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement or, to the
extent not disclosed in the EMI Schedules, by or against EMI which might result
in any material adverse change in any of the assets, properties, business or
operations of EMI.
Section
5.4 No
Material Adverse
Change. Prior to the Closing Date, there shall not have occurred any
material adverse change in the financial condition, business or operations
of
nor shall any event have occurred which, with the lapse of time or the giving
of
notice, may cause or create any material adverse change in the financial
condition, business or operations of EMI.
11
Section
5.5 Other
Items. EMC
shall have received such further documents, certificates or instruments relating
to the transactions contemplated hereby as UH may reasonably
request.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF EMC
The
obligations of EMC under this Agreement are subject to the satisfaction, at
or
before the Closing date (unless otherwise indicated herein), of the following
conditions:
Section
6.1 Accuracy
of
Representations. The representations and warranties made by EMC in
this Agreement were true when made and shall be true as of the Closing Date
(except for changes therein permitted by this Agreement) with the same force
and
effect as if such representations and warranties were made at and as of the
Closing Date, and EMC shall have performed and complied with all covenants
and
conditions required by this Agreement to be performed or complied with by EMC
prior to or at the Closing. EMI shall have been furnished with a certificate,
signed by a duly authorized executive officer of EMC and dated the Closing
Date,
to the foregoing effect.
Section
6.2 Director Approval. The
Board of Directors of EMC shall have approved this Agreement and the
transactions contemplated herein.
Section
6.3 Officer's
Certificate.
EMI shall be furnished with a certificate dated the Closing date and
signed by a
duly authorized officer of EMC to the effect that: (a) the representations
and
warranties of EMC set forth in the Agreement and in all Exhibits, Schedules
and
other documents furnished in connection herewith are in all material respects
true and correct as if made on the Effective Date; and (b) EMC had performed
all
covenants, satisfied all conditions, and complied with all other terms and
provisions of the Agreement to be performed, satisfied or complied with by
it as
of the Effective Date.
Section
6.4 No
Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with the lapse of time
or
the giving of notice, may cause or create any material adverse change in the
financial condition, business or operations of EMC.
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Brokers
and
Finders. Each party hereto hereby represents and
warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
12
Section
7.2 Law,
Forum and
Jurisdiction. This Agreement shall be construed and
interpreted in accordance with the laws of the State of North Carolina, United
States of America.
Section
7.3 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail
or
certified mail, postage prepaid, or by prepaid telegram addressed as
follows:
|
If
to EMI:
|
0000
Xxxxxxxx Xxxxxxx Xxxxx
|
Xxxxxxx,
XX 00000
|
If
to EMC:
|
0000
Xxxxxxxx Xxxxxxx Xxxxx,
|
Xxxxxxx,
XX 00000
or
such
other addresses as shall be furnished in writing by any party in the manner
for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered, mailed or
telegraphed.
Section
7.4 Attorneys'
Fees. In the
event that any party institutes any action or suit to enforce this Agreement
or
to secure relief from any default hereunder or breach hereof, the breaching
party or parties shall reimburse the non-breaching party or parties for all
costs, including reasonable attorneys' fees, incurred in connection therewith
and in enforcing or collecting any judgment rendered therein.
Section
7.5 Confidentiality. Each
party hereto agrees with the other party that, unless and until the transactions
contemplated by this Agreement have been consummated, they and their
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any books or records or from personal
inspection, of such other party, and shall not use such data or information
or
disclose the same to others, except: (i) to the extent such data is a matter
of
public knowledge or is required by law to be published; and (ii) to the extent
that such data or information must be used or disclosed in order to consummate
the transactions contemplated by this Agreement.
Section
7.6 Schedules;
Knowledge. Each party is presumed to have full knowledge of all
information set forth in the other party's schedules delivered pursuant to
this
Agreement.
Section
7.7 Third
Party
Beneficiaries. This contract is solely between EMI and EMC and
except as specifically provided, no director, officer, stockholder, employee,
agent, independent contractor or any other person or entity shall be deemed
to
be a third party beneficiary of this Agreement.
Section
7.8 Entire
Agreement. This
Agreement represents the entire agreement between the parties relating to the
subject matter hereof. This Agreement alone fully and completely expresses
the
agreement of the parties relating to the subject matter hereof. There are no
other courses of dealing, understanding, agreements, representations or
warranties, written or oral, except as set forth herein. This Agreement may
not
be amended or modified, except by a written agreement signed by all parties
hereto.
13
Section
7.9 Survival;
Termination. The representations, warranties and covenants of
the respective parties shall survive the Closing Date and the consummation
of
the transactions herein contemplated for 18 months.
Section
7.10 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
Section
7.11 Amendment
or Waiver.
Every right and remedy provided herein shall be cumulative with every
other
right and remedy, whether conferred herein, at law, or in equity, and may be
enforced concurrently herewith, and no waiver by any party of the performance
of
any obligation by the other shall be construed as a waiver of the same or any
other default then, theretofore, or thereafter occurring or existing. At any
time prior to the Closing Date, this Agreement may be amended by a writing
signed by all parties hereto, with respect to any of the terms contained herein,
and any term or condition of this Agreement may be waived or the time for
performance hereof may be extended by a writing signed by the party or parties
for whose benefit the provision is intended.
Section
7.12 Expenses. Each
party herein shall bear all of
their respective cost s and expenses incurred in connection with the negotiation
of this Agreement and in the consummation of the transactions provided for
herein and the preparation thereof.
Section
7.13 Headings;
Context. The
headings of the sections and paragraphs contained in this Agreement are for
convenience of reference only and do not form a part hereof and in no way
modify, interpret or construe the meaning of this Agreement.
Section
7.14 Benefit. This
Agreement
shall be binding upon and shall inure only to the benefit of the parties hereto,
and their permitted assigns hereunder. This Agreement shall not be assigned
by
any party without the prior written consent of the other party.
Section
7.15 Public
Announcements. Except
as may be required by law, neither party shall make any public announcement
or
filing with respect to the transactions provided for herein without the prior
consent of the other party hereto.
Section
7.16 Severability. In
the
event that any particular provision or provisions of this Agreement or the
other
agreements contained herein shall for any reason hereafter be determined to
be
unenforceable, or in violation of any law, governmental order or regulation,
such unenforceability or violation shall not affect the remaining provisions
of
such agreements, which shall continue in full force and effect and be binding
upon the respective parties hereto.
Section
7.17 Failure
of Conditions;
Termination. In the event of any of the conditions specified in this
Agreement shall not be fulfilled on or before the Closing Date, either of the
parties have the right either to proceed or, upon prompt written notice to
the
other, to terminate and rescind this Agreement. In such event, the party that
has failed to fulfill the conditions specified in this Agreement will liable
for
the other parties legal fees. The election to proceed shall not affect the
right
of such electing party reasonably to require the other party to continue to
use
its efforts to fulfill the unmet conditions.
Section
7.18 No
Strict Construction.
The language of this Agreement shall be construed as a whole, according
to its
fair meaning and intendment, and not strictly for or against either party
hereto, regardless of who drafted or was principally responsible for drafting
the Agreement or terms or conditions hereof.
14
Section
7.19 Execution
Knowing and
Voluntary. In executing this Agreement, the parties severally
acknowledge and represent that each: (a) has fully and carefully read and
considered this Agreement; (b) has been or has had the opportunity to be fully
apprized by its attorneys of the legal effect and meaning of this document
and
all terms and conditions hereof; (c) is executing this Agreement voluntarily,
free from any influence, coercion or duress of any kind.
Section
7.20 Amendment. At
any time after the Closing Date, this Agreement may be amended by a writing
signed by both parties, with respect to any of the terms contained herein,
and
any term or condition of this Agreement may be waived or the time for
performance hereof may be extended by a writing signed by the party or parties
for whose benefit the provision is intended.
Section
7.21 Conflict of
Interest. Both EMC and EMI understand that Xxxxxx &
Xxxxxx, LLP is representing both parties in this transaction which represents
a
conflict of interest. Both EMC and EMI have the right to different
counsel due to this conflict of interest. Notwithstanding the above,
both EMC and EMI agree to waive this conflict and have Xxxxxx & Jaclin, LLP
represent both parties in the above-referenced transaction. Both EMC
and EMI agree to hold this law firm harmless from any and all liabilities that
may occur or arise due to this conflict.
15
IN
WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, and entered into as of the date
first above written.
|
ATTEST:
|
El
Maniel International,
Inc.
|
______________________________ By:_______________________
Xxxxxxx
Xxxxxx
President
ATTEST: El
Maniel Cigar
Company
______________________________ By:_______________________
Xxxxxxx
Xxxxxx
President
16
