EXHIBIT 2
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as
of September 24, 1998 ("Execution Date") by and among FIRST GOLF CORPORATION, a
South Dakota corporation ("FGC"), W. XXXXXX XXXXXXXXX ("Stockholder") and FIRST
GOLF ACQUISITION CORPORATION, a Nevada corporation ("Buyer"), a wholly-owned
subsidiary of CEC PROPERTIES, INC., a Delaware corporation ("CEC").
R E C I T A L S
A. FGC engages in the business of construction management of golf
courses. Stockholder is the president, director and sole
stockholder of FGC. Stockholder and FGC are sometimes
collectively referred to in this Agreement as "Seller."
B. Seller desires to sell the assets (as that term is defined in
Section 1) to the Buyer, and the Buyer desires to purchase the
Assets from Seller, upon the terms and subject to the
conditions contained in this Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing recitals and
premises, and the mutual promises, agreements, representations and warranties
herein contained, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. For the purposes of this Agreement, the
following terms shall have the meaning indicated unless the context requires
otherwise.
"Assets" means and includes all assets of FGC, whether
tangible or intangible, including without limitation, all trademarks;
tradenames; service marks; inventory; fixed assets; fixtures, files,
computers and computer software, furnishings and equipment; and
supplies' prepaid items; customer lists; transferable licenses, permits
and registrations, work-orders, facility leases, management agreements
and contract rights. A list of such items is attached hereto as
Schedule 1. "Assets" does not include cash or accounts receivable.
"Closing" refers to the closing of the Asset purchase
transaction and the exchange and delivery of all of the documents and
consideration generally described in this Agreement.
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"Closing Date" means October 1, 1998 or such earlier date as
provided in Section 9 below.
"Execution Date" refers to the date all parties have agreed to
have signed this Agreement, which date is set forth above.
"Interim Period" refers to the period from the Execution Date
to and including the Closing Date.
2. AGREEMENT TO SELL AND TRANSFER THE ASSETS. Upon the terms and
subject to all of the conditions contained herein and upon the performance by
the parties hereto of their obligations hereunder, Seller hereby agrees to sell,
assign, transfer and deliver to the Buyer, on and as of the Closing Date, all of
the Assets, by delivering to the Buyer at the Closing appropriate assignments,
conveyances and bills of sale validly transferring the Assets to the Buyer as
required by the terms of this Agreement.
3. PURCHASE PRICE FOR THE ASSETS.
3.1 PURCHASE PRICE AND ADJUSTMENT. As a consideration for the
Buyer's purchase of the Assets, and upon and subject to all of the terms and
conditions contained herein and upon the performance by each of the parties
hereto of their obligations hereunder, the Buyer agrees to pay the following
("Purchase Price"):
3.1.1. Subject to the hereinafter described conditions Buyer
shall pay the following payments and shall deliver to Seller shares of CEC
Common Stock, $.01 par value in the following amounts at the following times:
On the Seven Month
Anniversary Date
Consideration At Closing of the Closing
------------- ---------- ------------------
Cash $125,000 $75,000
Shares of CEC Common Stock 640,000 _
3.1.1.1. Of the shares provided hereinabove to be
delivered to Seller at the Closing Buyer will deliver 194,560 of such shares to
Xxxx Xxxxx and Xxxxxxx Xxxxxxx, divided as Seller shall advise Buyer provided
they each agree to execute a copy of Schedule 10 in connection with and as a
condition to such delivery.
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3.1.1.2. Of the shares provided hereinabove to be
delivered to Seller at the Closing, Buyer will deliver 336,000 of said shares to
a mutually agreed upon Pledgeholder, to be held in pledge pursuant to the terms
of the Pledge Agreement attached hereto as Schedule 3.1.1.2. The Pledge provides
that subject to the following conditions 176,000 of the shares are released to
Seller following the fiscal year ending October 31, 1999 and 160,000 shares are
released following the fiscal year ending October 31, 2000, with any remaining
undelivered shares subject to delivery following the fiscal year ending October
31, 2001. However, in the event the "Net Earnings" before taxes, to Buyer as a
result of the acquisition of the Assets for each of the two full fiscal years of
Buyer subsequent to the Closing Date commencing with the fiscal year ending
October 31, 1999, shall not equal at least One Million Six Hundred Thousand
Dollars ($1,600,000) per year (the "Target Earnings") then and in that event the
number of shares to be delivered to Seller for the applicable year shall be
reduced by a percentage determined as follows:
Target Earnings: $1,600,000
Stock to be disbursed for fiscal 1999: 176,000 shares
Assume as an example that Net Earnings are $1,000,000 then the
following calculations shall take place:
Target Earnings: $1,600,000
Actual Net Earnings: (1,000,000)
-----------
1,000,000 / 1,600,000 = .625
----------
176,000
x .625
-----------
110,000 shares
Accordingly, the number of shares delivered would be reduced to 110,000. In the
event the number of shares to be delivered is insufficient to meet the
shortfall, as in the case of a loss situation, then Seller shall return a
sufficient number of shares from the shares already received as is necessary so
as to meet the difference. Notwithstanding the foregoing, in the event that at
the conclusion of the delivery of shares following fiscal year end October 31,
2000, shares still remain in pledge, then and in that event the calculations
shall again be made following the end of the fiscal year ending October 31,
2000. To the extent that Actual Net Earnings exceed the 1,600,000 Target in the
third year then any remaining shares shall be released from the pledge pursuant
to the same formula as they were held back in any previous year. "Net Earnings"
shall be determined in accordance with generally accepted accounting principles
but excluding expenses solely related to the operations of CEC.
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3.1.2. If the average closing bid and asked price of the CEC
common stock as traded in the public market in which such stock trades shall for
ten (10) days preceding October 31, 2000 (the "Average Price") be less than
three dollars and twelve cents ($3.12) per share then, provided Seller shall
still own the shares issued pursuant to this Agreement, Buyer shall, within
forty-five (45) days deliver to Seller additional shares of CEC common stock so
that the Average Price of all shares delivered to Seller pursuant to the terms
of this agreement will aggregate no less than two million dollars ($2,000,000),
but in no event shall the number of additional shares delivered hereunder exceed
445,440 shares. To the extent the total shares delivered hereunder are less than
640,000 then the $2,000,000 aggregate number will be reduced by $3.12 for each
share less than 640,000 shares delivered. Notwithstanding the foregoing, in the
event Seller has the right to sell all or any portion of the shares received
pursuant to this Agreement as a result of registration rights granted hereby or
otherwise for a price per share of at least three dollars and twelve cents
($3.12) and Seller chooses not to sell said shares then and in that event the
guaranty pursuant to this Section 3.1.2 shall thereupon expire as to such
shares.
3.1.3. CEC shall, at its sole expense, include with any
registration it files on Form S-1, subsequent to the filing it intends to make
within the next three (3) months, the shares to be issued pursuant to this
Agreement. CEC agrees to execute and deliver at the closing a Registration
Rights Agreement in substantially the form attached hereto as Schedule 3.1.4 to
give effect to such registration rights.
3.2 CLOSING DELIVERY. At the Closing Date, the Buyer will deliver
the funds and shares to Seller to be held pursuant to the terms of this
Agreement.
3.3 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated to the Assets on the basis set forth in the attached Schedule 3.3. All
parties to this Agreement agree to utilize that allocation for tax and
accounting purposes.
3.4 LIABILITIES ASSUMED. The Buyer has not assumed, voluntarily or
otherwise, or agreed to perform, discharge, satisfy or be responsible for, any
indebtedness, obligation or liability of Seller of any nature whatsoever,
whether known or unknown, suspected or unsuspected, and whether or not accrued,
contingent or otherwise, except as specifically set forth in Schedule 3.4
attached hereto. Any of the liabilities assumed which require cash payments will
be a deduction and credit against any cash payments required pursuant to Section
3.1.1 hereinabove.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. The following
representations and warranties of Seller are made jointly and severally and are
true and correct as of the Execution Date and will be true and correct as of the
Closing Date:
4.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. FGC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of South Dakota, with full corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby, and to own the Assets and conduct its business as owned and conducted on
the date hereof. FGC is qualified to do business as a foreign corporation under
the laws of any jurisdiction in which its business requires such qualification.
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4.2 AUTHORIZATION OF AGREEMENT. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by the Seller have been duly and validly authorized by the
Board of Directors and sole shareholder of FGC. No further corporate
authorization is required on the part of FGC to consummate the transactions
contemplated hereby.
4.3 VALID AND BINDING AGREEMENTS. This Agreement and the Non-
Competition Agreement (as such terms are hereinafter defined), constitute the
legal, valid and binding obligations of FGC, enforceable against FGC in
accordance with their respective terms, except to the extent limited by
bankruptcy, insolvency, reorganization and other laws affecting creditors'
rights generally, and except that the remedy of specific performance or similar
equitable relief is available only at the discretion of the court before which
enforcement is sought.
4.4 NO BREACH OF STATUTE OR CONTRACT. Neither the execution and
delivery of this Agreement or the Non-Competition Agreement by FGC and the
Stockholder (to the extent a party thereto), nor compliance with the terms and
provisions of this Agreement and the Non-Competition Agreement on the part of
FGC and the Stockholder (to the extent a party thereto), will: (a) violate any
statute or regulation of any governmental authority, domestic or foreign,
affecting FGC or the Stockholder (b) require the issuance of any authorization,
license, consent or approval of any federal or state governmental agency or any
other person; or (c) conflict with or result in a breach of any of the terms,
conditions or provisions of the articles or certificate of incorporation or
by-laws of FGC or any judgment, order, injunction, decree, agreement or
instrument to which FGC or the Stockholder is a party, or by which FGC or the
Stockholder is bound, or constitute a default thereunder. Except as set forth in
Schedule 4.4 annexed hereto, FGC has obtained, and there is in full force and
effect, all consents of lessors and other persons which may be required in order
to effect the transfer and assignment to the Buyer of all leases and other
contractual rights included in the Assets.
4.5 FINANCIAL INFORMATION.
4.5.1. Annexed hereto as SCHEDULE 4.5 are the unaudited balance
sheets and statements of operations of the Seller as of December 31, 1996 and
December 31, 1997, and for the fiscal years then ended, and for the six months
ended June 30, 1998, as prepared by management of FGC (the "Financial
Statements").
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4.5.2. The Financial Statements represent the Seller's best
estimate, of the financial position and results of operations of FGC as of the
dates thereof and for the periods reflected therein.
4.5.3. Except as expressly set forth in the Financial Statements
as of June 30, 1998, and/or in the Schedules to this Agreement, or arising in
the normal course of FGC's business since June 30, 1998, there are, as at the
date hereof, no liabilities or obligations (including, without limitation, any
tax liabilities or accruals) of FGC's business, including any contingent
liabilities, that are, in the aggregate, material.
4.6 NO MATERIAL CHANGES. Except as and to the extent described in
Schedule 4.6 annexed hereto (which Schedule may make reference to any other
Schedule hereto) and/or in the Financial Statements, since June 30, 1998, FGC,
has been operated only in the ordinary course, and there has not been:
4.6.1. Any material change in the financial condition,
operations or business of FGC from that shown in the June 30, 1998, Financial
Statements and for the period then ended, any material acquisition or
disposition of Assets, or any other material transaction or commitment relating
to the Assets which was effected or entered into outside of the normal course of
the FGC business;
4.6.2. any damage, destruction or loss, whether covered by
insurance or not, materially and adversely affecting the FGC business,
operations, assets, properties, financial condition or prospects of Assets or
FGC;
4.6.3. any declaration, payment or setting aside of any dividend
or other distribution (other than in cash) of any assets or property utilized in
the FGC business;
4.6.4. any material increase in the rate of salary or
compensation paid or payable to any employee, consultant or other person
performing services in the FGC business; or
4.6.5. any other event or condition arising from or out of the
operations of FGC which has or will materially and adversely affect the
business, financial condition, results of operations or prospects of FGC or the
Assets.
4.7 TAXES AND TAX RETURNS.
4.7.1. All taxes, duties, fees and imposts (collectively
"Taxes"), imposed, levied or assessed by the United States or by any state,
municipality, subdivision or instrumentality of the United States, or by any
other taxing authority, which are due and payable by FGC, and all interest and
penalties thereon, whether disputed or not, have been paid in full; all tax
returns and other information, certificates and declarations required to be
filed in connection therewith and which affect FGC or the Assets have been
accurately prepared and duly and timely filed; and all deposits required by law
to be made by FGC with respect to any Taxes, or FGC's ability to convey the
Assets, have been duly and timely made.
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4.7.2. Except as set forth in Schedule 4.7.2, annexed hereto,
there are no audits pending with respect to any federal, state or local tax
returns of FGC, and no waivers of statutes of limitations have been given or
requested with respect to any tax years or tax filings of FGC.
4.8 PERSONAL PROPERTY; LIENS. FGC owns good and indefeasible title
to all of the personal property utilized in its business, free and clear of all
liens, pledges, claims, security interests and encumbrances whatsoever, except
for: (a) rights of lessors in respect of those Assets which are leased by FGC;
(b) liens which solely secure the deferred purchase price of machinery,
equipment, vehicles and/or other fixed assets, as indicated on Schedule 4.8; (c)
liens for current taxes of FGC which are not yet due and payable or which are
being contested in good faith by appropriate proceedings and for which proper
reserves have been established by FGC; and (d) liens, pledges, claims, security
interests, encumbrances, conditions or restrictions which are not, individually
or in the aggregate, material in character or amount and do not interfere with
the use made or presently proposed to be made of any such property
(collectively, "Permitted Liens"). All material items of machinery, equipment,
vehicles and other Assets owned or leased by FGC and utilized in its business
are listed in Schedule 4.8 annexed hereto, and, except as and to the extent
disclosed in Schedule 4.8, all of such Assets are in good operating condition
and repair (reasonable wear and tear excepted) and are adequate for their use in
its business as presently conducted, and are sufficient for the continued
conduct of its business.
4.9 REAL PROPERTY.
4.9.1. FGC does not own or have any interest of any kind
(whether ownership, lease or otherwise) in any real property utilized in its
business except the leasehold interests under the lease for its business
location, a true and complete copy of which is included within Schedule 4.9 (the
"Lease").
4.9.2. The Seller (and, to the best of the Seller's knowledge,
the landlord thereunder) is presently in compliance with all of its obligations
under the Lease, and the premises leased thereunder are in good condition
(reasonable wear and tear excepted) and are adequate for the operation of FGC's
business as presently conducted therefrom.
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4.10 PERMITS AND LICENSES. FGC possesses all required permits,
licenses and/or franchises, from whatever governmental authorities or agencies
(domestic and/or foreign) requiring the same and having jurisdiction over FGC,
necessary in order to operate its business in the manner presently conducted,
all of which permits, licenses and/or franchises are valid, current and in full
force and effect, except where the failure to have or maintain any such permit,
license and/or franchise would not have a material adverse effect on FGC or the
Assets. FGC has heretofore conducted its business in compliance with the
requirements of such permits, licenses and/or franchises, and FGC has not
received written notice of any default or violation in respect of or under any
of such permits, licenses and/or franchises except where such default would not
have a material adverse effect on FGC or its business.
4.11 TRADE NAMES, TRADEMARKS AND COPYRIGHTS. The Schedule of Trade
Names attached hereto as Schedule 4.11 contains a complete and accurate list of
all trademarks, service marks, trade names, copyrights, trademark registrations
or applications or copyright registrations or applications owned or utilized by
FGC. To the best of Seller's knowledge, none of the trademarks, service marks,
trade names, copyrights, trademark registrations or applications or copyright
registrations or applications described on the Schedule of Trade Names violate
or infringe upon the trademark, copyright or other proprietary right of any
other corporation, entity or individual, or have been abandoned or are the
subject of any cancellation petition or proceeding and Seller has not received
any notice of such alleged violation or infringement. Seller will change the
name of FGC at the Closing to one dissimilar from its present name.
4.12 CUSTOMERS. To the best of Seller's knowledge, the Schedule of
Customers attached as Schedule 4.12 contains an accurate and complete list of
the current customers or potential customers of FGC. Seller has no information,
nor is it aware of any facts, indicating that any of its current customers,
clients or potential customers intend to cease doing business with FGC or to
materially lower the amount of the business that each such party is presently
doing or contemplates doing with FGC.
4.13 CONTRACTS AND AGREEMENTS. To the best of Seller's knowledge,
the Schedule of Contracts attached as Schedule 4.13 contains an accurate and
complete list setting forth a description of each material indenture, agreement,
contract, royalty agreement, license agreement, work-order, marketing agreement
or any other services purchased or sales contract, agreement or arrangement,
whether written or oral, or other material obligation, if any, to which FGC is a
party, or by which it is bound as of the date hereof relating to the Assets. To
the best of Seller's knowledge, each of the contracts, agreements or
arrangements described on the Schedule of Contracts is a valid and binding
obligation of the parties thereto and to the best of Seller's knowledge no party
to any such contract, agreement or arrangement is in material default with
respect to any material 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 material default thereunder or would cause the acceleration of any
material obligation of any party thereto, or the creation of a lien or
encumbrance upon any of the Assets. The consummation of this Agreement will not
constitute a default under or otherwise materially adversely affect the rights
of FGC under any contract, agreement or arrangement described on the Schedule of
Contracts or require the consent of any party thereto. True and complete copies
of all contracts, agreements or arrangements described on the Schedule of
Contracts have been attached as exhibits or made available to the Buyer.
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4.14 INSURANCE COVERAGE. To the best of the Seller's knowledge, the
Schedule of Insurance set forth at Schedule 4.14 attached contains a complete
and accurate description of each insurance policy maintained by FGC affecting,
relating to or covering the Assets. To the best of Seller's knowledge, each such
insurance policy described on the Schedule of Insurance is a valid and binding
obligation of the insurer, and neither FGC nor the insurer is in material
default with respect to any material 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 material default thereunder or give rise to a right to
cancel such policy. The insurance policies of FGC are in amounts deemed to be
sufficient in view of the business of FGC.
4.15 INVENTORY. The inventories of goods ("Inventories") shown on
the Balance Sheets consist of items of a quality and quantity useable and
saleable in the ordinary course of business by FGC. There has been no write down
of inventory on the books of FGC. All items included in the inventories are the
property of FGC, except for sales made in the ordinary course of business since
the date of the June 30, 1998 Financial Statements; for each of these sales
either the purchaser has made full payment or the purchaser's liability to make
payment is reflected in the books of FGC. No items included in the Inventories
have been pledged as collateral or are held by FGC on consignment from others.
The inventories shown are based on quantities determined by physical count or
measurement, taken within the preceding 12 months, and are valued at the lower
of cost (determined on a first-in, first-out basis) or market value and on a
basis consistent with that of prior years.
4.16 TRADE SECRETS. Schedule 4.16 to this Agreement is a true and
complete list, without extensive or revealing descriptions, of FGC's trade
secrets, including all client and prospect lists, processes, know-how and other
technical data. The specific location of each trade secret's documentation,
including its complete description, specifications, charts, procedures, and
other material relating to it, is also set forth with it in that Schedule. Each
trade secret's documentation is current, accurate, and sufficient in detail and
content to identify and explain it, and to allow its full and proper use by
Buyer without reliance on the special knowledge or memory of others.
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FGC is the sole owner of each of these trade secrets, free and clear
of any liens, encumbrances, restrictions, or legal or equitable claims of
others, except as specifically stated in Schedule 4.16. FGC has taken all
reasonable security measures to protect the secrecy, confidentiality, and value
of these trade secrets; any of its employees and any other persons who, either
alone or in concert with others, developed, invented, discovered, derived,
programmed, or designed these secrets, or who have knowledge of or access to
information relating to them, have been put on notice and, if appropriate, have
entered into agreements that these secrets are proprietary to FGC and not to be
divulged or misused.
All these trade secrets are presently valid and protectable, and are
not part of the public knowledge or literature, nor to Seller's knowledge have
they been used, divulged, or appropriated for the benefit of any past or present
employees or other persons, or to the detriment of FGC.
4.17 LABOR, BENEFIT AND EMPLOYMENT AGREEMENTS.
4.17.1. Except as set forth in Schedule 4.17 annexed hereto,
FGC is not a party to and has no commitment or obligation in respect of (a) any
collective bargaining agreement or other labor agreement, or (b) any agreement
with respect to the employment or compensation of any non-hourly and/or
non-union employee(s) of FGC. Schedule 4.17 sets forth the amount of all
compensation or remuneration (including any discretionary bonuses) paid by FGC
during the 1997 calendar year to employees or consultants who then received or
presently receive aggregate compensation or remuneration at an annual rate in
excess of $35,000.
4.17.2. No union is now certified or, to the best of the
Seller's knowledge, claims to be certified as a collective bargaining agent to
represent any employees of FGC, and there are no labor disputes existing or, to
the best of the Seller's knowledge, threatened, involving strikes, slowdowns,
work stoppages, job actions or lockouts of any employees of FGC.
4.17.3. There are no unfair labor practice charges or petitions
for election pending or being litigated before the National Labor Relations
Board or any other federal or state labor commission relating to any employees
of FGC. The Seller has not received any written notice of any actual or alleged
violation by FGC of any law, regulation, order or contract term affecting the
collective bargaining rights of employees, equal opportunity in employment, or
employee health, safety, welfare, or wages and hours.
4.17.4. With respect to any "multiemployer plan" (as defined in
Section 3(37) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) to which FGC or any of its affiliates has at any time been required
to make contributions, neither the Seller nor any of its affiliates has, at any
time on or after April 29, 1980, suffered or caused any "complete withdrawal" or
"partial withdrawal" (as such terms are respectively defined in Sections 4203
and 4205 of ERISA) therefrom on its part.
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4.17.5. Except as disclosed in Schedule 4.17, FGC does not
maintain, or have any liabilities or obligations of any kind with respect to,
any bonus, deferred compensation, pension, profit sharing, retirement or other
such benefit plan, or any potential or contingent liability in respect of any
actions or transactions relating to any such plan other than to make
contributions thereto if, as and when due in respect of periods subsequent to
the date hereof. Without limitation of the foregoing, (a) FGC has made all
required contributions to or in respect of any and all such benefit plans, (b)
no "accumulated funding deficiency" (as defined in Section 412 of the Internal
Revenue Code of 1986, as amended (the "Code")) has been incurred in respect of
any of such benefit plans, and the present value of all vested accrued benefits
thereunder does not, on the date hereof, exceed the assets of any such plan
allocable to the vested accrued benefits thereunder, (c) there has been no
"prohibited transaction" (as defined in Section 4975 of the Code) with respect
to any such plan, and no transaction which could give rise to any tax or penalty
under Section 4975 of the Code or Section 502 of ERISA, and (d) there has been
no "reportable event" (within the meaning of Section 4043(b) of ERISA) with
respect to any such plan. All of such plans which constitute, are intended to
constitute, or have been treated by the Seller as "employee pension benefit
plans" or other plans within Section 3 of ERISA have been determined by the
Internal Revenue Service to be "qualified" under Section 401(a) of the Code, and
have been administered and are in compliance with ERISA and the Code; and FGC
has no knowledge of any state of facts, conditions or occurrences such as would
impair the "qualified" status of any such plans. All such plans will be
terminated as of the Closing Date.
4.17.6. Except for the group insurance programs listed in
Schedule 4.17 FGC does not maintain any medical health, life or other employee
benefit insurance programs or any welfare plans (within the meaning of Section
3(1) of ERISA) for the benefit of any current or former employees, and, except
as required by statutory law, FGC does not have any liability, fixed or
contingent, for health or medical benefits to any former employee.
4.18 INTEREST IN CUSTOMERS, SUPPLIERS AND COMPETITORS. Except as set
forth in Schedule 4.18 neither Stockholder nor any employee of FGC, nor any
spouse or child of any of them has any direct or indirect interest in any
competitor, customer or potential customer of FGC or in any person from whom or
to whom FGC is doing business.
4.19 PERSONNEL IDENTIFICATION AND COMPENSATION. Schedule 4.19 is a
list of the names and addresses of all employees, agents, and representatives of
FGC, stating the rates of compensation payable to each. At the Closing there
shall be no obligation of any kind owed to or related to the employees or their
employment. It is understood that all such employees shall be terminated at the
Closing. Buyer shall determine, in its sole discretion, which if any of such
employees it wishes to hire and under what terms and conditions.
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4.20 COMPLIANCE WITH LAWS.
4.20.1. FGC is in compliance in all material respects with all
laws, statutes, regulations, rules and ordinances applicable to the conduct of
its business as presently constituted; and FGC has not received written notice
of any default or violation under or in respect of any of the foregoing. FGC is
not presently in material violation of any requirements of any of its insurance
carriers.
4.20.2. Without limitation of Section 4.20.1 above, FGC has
not, at any time during the three (3) year period prior to the effective date
hereof, (a) handled, stored, generated, processed, released or disposed of any
hazardous substances in violation of any federal, state or local environmental
laws or regulations, or (b) otherwise committed any material violation of any
federal, state or local environmental laws or regulations (including, without
limitation, the provisions of the Environmental Protection Act, the
Comprehensive Environmental Responsibility and Cleanup Act, and other applicable
environmental statutes and regulations) or any material violation of the
Occupational Safety and Health Act.
4.20.3. Neither FGC nor any of FGC's directors, officers or
employees has received any written notice of default or violation, nor, to the
best of Seller's knowledge, is FGC or any of its directors, officers or
employees in default or violation, with respect to any judgment, order, writ,
injunction, decree, demand or assessment issued by any court or any federal,
state, local, municipal or other governmental agency, board, commission, bureau,
instrumentality or department, domestic or foreign, relating to any aspect of
FGC's business, affairs, properties or assets. Neither FGC nor any of FGC's
directors, officers or employees, has received written notice of, been charged
with, or is under investigation with respect to, any violation of any provision
of any federal, state, local, municipal or other law or administrative rule or
regulation, domestic or foreign, relating to any aspect of FGC's business,
affairs, properties or assets, which violation would have a material adverse
effect on FGC or its Assets.
4.21 BROKERAGE AND FINDER'S FEES. Seller has not incurred any
liability to any broker, finder or agent for any brokerage fees, finder's fees
or commissions with respect to the transactions contemplated by this Agreement.
4.22 LITIGATION. Except as set forth in Schedule 4.22 there are no
known claims, legal actions, suits, arbitrations, or governmental investigations
or other legal or administrative proceedings or orders, decrees or judgments in
progress, pending or in effect, or, to the best knowledge of Seller's knowledge
threatened against or relating to FGC, the Assets or the transactions
contemplated by this Agreement.
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4.23 CONSENTS TO ASSIGNMENT Except as otherwise set forth in this
Agreement no written consents to assignment of any lease, contract or agreement
included in the Assets to which FGC is presently a party or by which it is bound
is required in connection with the transactions contemplated by this Agreement.
4.24 GOING CONCERN. The Seller has no knowledge of any fact, event,
circumstance or condition (including, without limitation, any announced or
anticipated changes in the policies of any material client, potential client or
customer) that would materially impair the ability of the Buyer, from and after
the Closing (as such term is hereinafter defined), to continue the FGC business
in substantially the manner heretofore conducted, other than general,
industry-wide conditions.
4.25 DISCLOSURE AND DUTY OF INQUIRY. The Buyer is not nor will it be
required to undertake any independent investigation to determine the truth,
accuracy and completeness of the representations and warranties made by the
Seller in this Agreement.
4.26 INVESTMENT. Seller and Stockholder have reviewed the CEC
filings with the Securities and Exchange Commission ("SEC"). Stockholder, is an
accredited investor as defined by the SEC and Stockholder and Seller agree that
any CEC shares which they receive pursuant to this Agreement are taken by them
for investment and not for resale. Seller and Stockholder understand and agree
that such shares will carry a restrictive legend indicating they are held for
investment purposes and can only be resold pursuant to applicable securities
laws.
4.27 MATERIAL MISSTATEMENTS OR OMISSIONS. None of the
representations or warranties set forth in this Section 4 are false or
misleading in any material respect, or omits to state any fact required to be
stated therein or necessary in order to make any of the statements therein not
misleading in any material respect in light of the circumstances under which
they are made.
5. CERTAIN COVENANTS AND AGREEMENTS OF SELLER.
5.1 CONDUCT OF BUSINESS BEFORE THE CLOSING. Prior to the Closing (a)
FGC shall conduct its business diligently, in good faith and in the ordinary and
usual course, consistent with past practices; and (b) none of the Assets will be
sold, assigned, conveyed, transferred, encumbered, pledged or subjected to any
lien, right or security interest of any third party.
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5.2 ACCESS AND INFORMATION. Prior to the Closing Seller will afford
the Buyer, its counsel, accountants and other representatives, reasonable access
to all of the properties, books, contracts and records of FGC and any records
concerning FGC maintained and accumulated by the counsel and/or accountants to
FGC pertaining to the Assets, and will furnish such persons and entities with
all information, including copies of books, contracts and records, concerning
the affairs of FGC as they relate to FGC and the Assets which the Buyer or its
representatives may reasonably request.
5.3 NON-COMPETITION. For a period of one (1) year from and after the
date Stockholder ceases to be an employee of Buyer, Stockholder agrees that he
will not engage in the same business as FGC within the States of Arizona,
California, Iowa, Louisiana, Maryland, Missouri, Nevada, North Carolina, New
Jersey, New Mexico, New York or Oregon provided that ownership of a
non-operating and dormant entity known as Golf, Inc., so long as it shall
continue to be non-operating and dormant and ownership of less than 1% of the
outstanding securities of any class of securities traded on a national
securities exchange or the NASDAQ National Market System will not be deemed to
be engaging, solely by reason thereof, in a competing business. In the event the
covenants, conditions or limitations of this provision are invalid or
unenforceable in part by reason of being too broad in scope, too long in
duration or applicable to too wide a geographic area, such covenants, conditions
and limitations shall not totally fail but shall be deemed and construed in all
respects to be limited to the maximum scope, duration and area permitted by law,
and in such manner to be specifically enforceable to carry out the intent of the
parties.
5.4 SALES AND USE TAXES. Any sales or use taxes imposed on or as a
result of the transfer of the Assets from FGC to the Buyer shall be the sole
responsibility of, and shall be paid by FGC and FGC shall indemnify and hold
Buyer harmless on account thereof.
5.5 FINANCIAL STATEMENTS. Seller will provide Buyer with FGC audited
financial statements for its last two (2) fiscal years in form and substance
acceptable to Buyer, which audited financial statements shall not be materially
different from the unaudited Financial Statements delivered to Buyer pursuant to
Section 4.5 hereinabove. The cost of such audit shall be paid by Buyer.
6. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The following
representations and warranties of the Buyer are true and correct as of the
Execution Date and will be true and correct as of the Closing Date:
6.1 VALIDITY AND ENFORCEABILITY OF AGREEMENT. All proceedings or
corporate actions required to be taken by the Buyer relative to the execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein have been or will shortly be properly taken. This Agreement
has been duly executed on behalf of the Buyer and is a valid and binding
obligation of the Buyer, enforceable in accordance with its terms, except as
such enforcement may be affected by (i) laws of general application relating to
the enforcement of creditors' rights, or (ii) the availability of equitable
remedies which are subject to the discretion of the court before which any
proceedings therefor may be brought.
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6.2 EXECUTION, DELIVERY AND PERFORMANCE OF AGREEMENT. Neither the
execution, delivery nor performance of this Agreement by the Buyer will, with or
without the giving of notice or the passage of time, or both, conflict with,
result in a default, right to accelerate or loss of rights under, or result in
the creation of any lien, charge or encumbrance pursuant to, any provision of
the Buyer's Articles of Incorporation or Bylaws, or any franchise, mortgage,
deed of trust, lease, license, agreement, understanding, law, ordinance, rule or
regulation or any order, judgment or decree to which the Buyer is a party or by
which it may be bound or affected.
6.3 ORGANIZATION AND GOOD STANDING. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. To the best of Buyer's knowledge, the Buyer has all requisite corporate
power and authority and is entitled to carry on its business as now being
conducted. Buyer is a wholly-owned subsidiary of CEC.
6.4 BROKERAGE AND FINDER'S FEES. The Buyer has not incurred any
liability to any broker, finder or agent for any brokerage fees, finder's fees
or commissions with respect to the transactions contemplated by this Agreement,
except as to Xxx Xxxxxx, for which Buyer shall be solely responsible.
6.5 MATERIAL MISSTATEMENTS OR OMISSIONS. None of the representations
or warranties set forth in this Section 6 is false or misleading in any material
respect, or omits to state any fact required to be stated therein or necessary
in order to make any of the statements therein not misleading in any material
respect in light of the circumstances under which they are made.
7. COVENANTS OF THE BUYER. Prior to the Closing Date, the Buyer agrees
not to divulge, communicate, use to the detriment of the Companies or for the
benefit of any other corporation, entity or individual, or misuse in any way,
any confidential information or trade secrets of FGC; provided, however, such
obligation shall terminate upon the occurrence of any of the following: (i)
where such information now or hereafter becomes part of the public domain, and
the Buyer has not obtained or learned such information as the result of
"misappropriation" or "improper means," as those terms are defined in California
Civil Code, Section 3426.1; (ii) such information is already in the possession
of the Buyer at the time of the disclosures so long as it was acquired from
other than Seller or otherwise than by misappropriation or improper means; (iii)
such information hereafter comes into the possession of the Buyer from a third
party without breach of this contract; or (iv) such information is independently
developed by the Buyer.
8. BULK TRANSFER LAW COMPLIANCE. Seller has advised Buyer that
compliance with the Arizona provisions of the Commercial Code ("Bulk Transfer
Law"), of the intended sale of the Assets contemplated by this Agreement is not
required.
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9. CLOSING DATE. The Closing Date of the transactions contemplated by
this Agreement, and the exchange of the consideration and the other documents
described herein, shall take place at 10:00 a.m. on September __, 1998 ("Closing
Date") at 0000 X. Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx, or at
such other time, on such other date and/or at such other place and date as the
parties hereto may agree.
10. CONDITIONS PRECEDENT TO CLOSING.
10.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER. The Closing
shall not take place unless all of the following conditions have been fulfilled
and satisfied or have been waived in writing by the Buyer (such conditions are
solely for the benefit of the Buyer):
10.1.1. Seller shall have delivered the assignments,
conveyances and bills of sales as required by Section 2 hereof.
10.1.2. Seller shall have obtained all consents, approvals,
orders and/or clearances, if any, required of them in order to consummate the
transactions contemplated by this Agreement, including, without limitation, the
assignment of contracts and the termination of any security interest in or
covering any of the Assets.
10.1.3. There shall not have been discovered any material
inaccuracy with respect to any representation or warranty of Seller contained in
this Agreement. Seller shall deliver to the Buyer at the Closing a certificate
certifying the foregoing.
10.1.4. There shall be no material covenant or agreement of
Seller contained in this Agreement and required to be performed before the
Closing which has been breached in any material respect. Seller shall deliver to
the Buyer at the Closing a certificate certifying the foregoing.
10.1.5. No filing under the Bulk Transfer Law shall have been
required.
10.1.6. Seller shall deliver the audited financial statements
required pursuant to Section 5.5 hereinabove.
10.1.7. Seller shall have executed the investment
representation letter in the form of Schedule 10 attached and shall have agreed
to hold the shares for no less than two years and for investment purposes only.
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10.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The Closing
shall not take place unless all of the following conditions have been fulfilled,
satisfied, or have been waived in writing by Seller (such conditions are solely
for the benefit of Seller):
10.2.1. There shall not have been discovered any material
inaccuracy with respect to any representation or warranty of the Buyer contained
in this Agreement. The Buyer shall deliver to Seller at the Closing a
certificate certifying the foregoing.
10.2.2. There shall be no material covenant or agreement of
the Buyer contained in this Agreement and required to be performed before the
Closing which has been breached in any material respect. The Buyer shall deliver
to Seller at the Closing a certificate certifying the foregoing.
10.2.3. The Buyer shall have delivered to Seller the Purchase
Price required to be delivered at the Closing.
11. INDEMNIFICATION.
11.1 Seller shall indemnify, defend, protect and hold the Buyer,
and/or its officers, directors, shareholders, agents, successors and assigns
("Buyer Indemnified Parties"), harmless from, against and in respect of any and
all claims, demands, losses, costs, expenses, obligations, liabilities,
judgments, damages, recoveries and deficiencies, including interest, penalties
and attorneys' fees, that the Buyer Indemnified Parties shall incur or suffer,
which claims or liabilities are threatened against the Buyer Indemnified
Parties, which arise or result from, or relate to or are in any way connected
with any Buyer Event of Indemnity (as defined below). For purposes hereof, the
term Buyer Event of Indemnity means and includes any of the followings:
(i) Any material incorrectness in any
representation or warranty of Seller as set forth in this Agreement or in any
schedule, certificate or other document delivered in connection herewith.
(ii) Any material failure by Seller to perform its
respective covenants or agreements pursuant to this Agreement.
(iii) Any indebtedness, obligation or liability of
Seller not expressly assumed by the Buyer pursuant to Section 3.4 of the
Agreement.
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11.2 The Buyer shall indemnify, defend, protect and hold Seller,
and/or its agents, successors and assigns ("Seller Indemnified Parties"),
harmless from, against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, judgments, damages, recoveries and
deficiencies, including interest, penalties and attorneys' fees, that Seller
Indemnified Parties shall incur or suffer, which claims or liabilities are
threatened against Seller Indemnified Parties, which arise or result from, or
relate to or are in any way connected with any Seller Event of Indemnity (as
defined below). For purposes hereof, the term Seller Event of Indemnity means
and includes any of the following:
(i) Any material incorrectness in any
representation or warranty of the Buyer as set forth in this Agreement or in any
schedule, certificate or other document delivered in connection herewith.
(ii) Any material failure by the Buyer to perform
its covenants or agreements pursuant to this Agreement.
12. ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION.
12.1 OBLIGATION TO ARBITRATE. Any dispute between the parties
relating to the interpretation and enforcement of their rights and obligations
under this agreement shall be resolved solely by arbitration in accordance with
the provisions of this section.
12.2 BINDING ARBITRATION. Any dispute between the parties that is
to be resolved by arbitration shall be settled and decided by arbitration
conducted by the American Arbitration Association in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, as then in
effect, except as provided below. Any such arbitration shall be held and
conducted in Orange County, California before one arbitrator who shall be
selected by mutual agreement of the parties; if agreement is not reached on the
selection of an arbitrator within thirty (30) days, then such arbitrator shall
be appointed by the presiding judge of the superior court of the county in which
the arbitration is to be conducted.
12.3 ARBITRATION RULES AND PROCEDURES. The provisions of the
Commercial Arbitration Rules of the American Arbitration Association shall apply
and govern such arbitration, subject, however, to the following:
12.3.1. Any demand for arbitration shall be in writing and
must be made within a reasonable time after the claim, dispute or other matter
in question has arisen. In no event shall the demand for arbitration be made
after the date that institution of legal or equitable proceedings based on such
claim, dispute, or other matter would be barred by the applicable statute of
limitations or by agreement of the parties, whichever is applicable.
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12.3.2. The arbitrator or arbitrators appointed must be former
or retired judges or "attorneys" with at least ten (10) years experience in
business and business acquisition matters, or nonattorneys with like experience
in the area of dispute.
12.3.3. All proceedings involving the parties shall be
reported by a certified shorthand court reporter and written transcripts of the
proceedings shall be prepared and made available to the parties.
12.3.4. The arbitrator or arbitrators shall prepare in writing
and provide to the parties factual findings and the reasons on which the
decision of the arbitrator or arbitrators is based.
12.3.5. Final decision by the arbitrator or arbitrators must
be made within ninety (90) days from the date the arbitration proceedings are
initiated.
12.3.6. The prevailing party shall be awarded reasonable
attorneys' fees, expert and nonexpert witness costs and expenses, and other
costs and expenses incurred in connection with the arbitration, unless the
arbitrator or arbitrators for good cause determine otherwise.
12.3.7. Costs and fees of the arbitrator or arbitrators shall
be borne by the non-prevailing party, unless the arbitrator or arbitrators for
good cause determine otherwise.
12.3.8. The award or decision of the arbitrator or
arbitrators, which may include equitable relief, shall be final and judgment may
be entered on it in accordance with applicable law in any court having
jurisdiction over the matter.
12.3.9. The provisions of Title 9 of Part 3 of the California
Code of Civil Procedure, including Section 1283.05, and successor statutes,
permitting expanded discovery proceedings shall be applicable to all disputes
which are arbitrated pursuant to this Section.
13. EXPENSES. Each party shall pay its own expenses (including the fees
and expenses of its legal counsel, accountants and any other advisors,
consultants or experts) in connection with the transactions contemplated
hereunder.
14. NOTICES. All notices, requests, demands and other communications
required or contemplated hereunder shall be in writing, shall be personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, and shall be deemed to have been given upon the earlier of
(a) the date of personal delivery to the person to receive such notice at the
address indicated below or (b) if mailed to the person to receive such notice at
the address indicated below, four (4) business days after the date of posting by
the United States Post Office as evidenced by the execution of the return
receipt. The parties' addresses, for all purposes hereof, are as follows:
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Seller: First Golf Corporation
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: W. Xxxxxx Xxxxxxxxx, President
Buyer: First Golf Acquisition Corporation
c/o CEC Properties, Inc.
0000 X. Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, President
Notice of change of address shall be given by written notice but shall not be
deemed effective until it has been given in the manner detailed in this Section.
15. APPLICABLE LAW. This Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the internal laws, and not
the laws pertaining to conflicts or choice of laws, of the State of California
applicable to agreements made and to be performed wholly within the State of
California.
16. ATTORNEYS' FEES AND LITIGATION COSTS. If any suit, legal
proceeding, arbitration or other action is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party shall be entitled to recover its reasonable
attorneys' fees and other costs incurred in such proceedings or action, in
addition to any other relief to which it may be entitled.
17. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
statements, representations, warranties, indemnities, covenants and agreement
made by each of the parties hereto shall survive the Closing Date.
18. WAIVERS. No waiver of any breach or default hereunder, or of any
condition precedent to the performance of any obligation hereunder, shall be
considered valid unless in writing and signed by the parties giving such waiver
or against whom such waiver is to be enforced, and no such waiver shall be
deemed a waiver of any subsequent breach or default of the same or similar
nature.
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19. INTERPRETATION. The parties hereto acknowledge and agree that each
has been given the opportunity to independently review this Agreement with legal
counsel, and has the requisite experience and sophistication to understand,
interpret and agree to the particular language of the provisions hereof. In the
event of any ambiguity in or dispute regarding the interpretation of this
Agreement, or any provision hereof, the interpretation of this Agreement shall
not be resolved by any rule providing for interpretation against the party who
causes the uncertainty to exist or against the party who is the draftsman of
this Agreement.
20. PARTIAL INVALIDITY AND SEVERABILITY. If any provision of this
Agreement shall be held or deemed to be, or shall, in any fact, be inoperative
or unenforceable as applied in any particular case because it conflicts with any
other provision or provisions hereof or any constitution or statute or rule of
public policy or for any other reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or unenforceable in
any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable to any extent
whatsoever. The invalidity of any one or more phrases, sentences, clauses,
sections or subsections of this Agreement shall not affect the remaining portion
thereof.
21. SECTION HEADINGS. The section headings in this Agreement are
included for convenience only, are not a part of this Agreement and shall not be
used in construing it.
22. REFERENCE TO SECTIONS. All references to sections are deemed to
include references to the sections' subsidiary to the section referred to when
the context so requires. The term "this Section" refers to the Section of the
Agreement in which the reference is made and all other Sections subsidiary to
the Section referred.
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23. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of each corporate party hereto, their respective successors
and permitted assigns, and each individual party hereto and his or her heirs,
personal representatives, estates, successors and permitted assigns.
24. FURTHER ASSURANCES. Each party hereto agrees to execute and deliver
such other instruments, in form and substance mutually agreeable to the parties,
as any other party may reasonably require in order to carry out the terms of
this Agreement or to implement, complete or further the transactions
contemplated by this Agreement.
25. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
26. ENTIRE AGREEMENT; AMENDMENT. This Agreement, any all certificates,
schedules and exhibits incorporated herein, and all other agreements, documents
or writings required to be delivered in connection herewith contain the entire
understanding among the parties hereto with respect to the subject matter among
the parties hereof and supersedes any and all prior or contemporaneous written
or oral negotiations and agreements between them regarding the subject matter
hereof. No addition, modification or amendment of or to any term or provision of
this Agreement, or to this Agreement as a whole, shall be effective unless set
forth in writing and signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above mentioned.
FIRST GOLF CORPORATION
__________________________ By:_______________________________
W. Xxxxxx Xxxxxxxxx W. Xxxxxx Xxxxxxxxx, President
By:_______________________________
, Secretary
FIRST GOLF ACQUISITION CORPORATION
By:_______________________________
Xxxx Xxxxxxx, President
By:_______________________________
Xxxxxx Xxxxxxx, Secretary
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