PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of the 7th of March, 2003, by and between the
following:
XXXXXXX X. XXXXXX, an individual (hereinafter "Seller"); and
EPIC FINANCIAL CORPORATION, a Nevada corporation (hereinafter "EPIC").
W I T N E S S E T H
WHEREAS, subject to the terms and conditions of this
Agreement, EPIC and Seller desire for EPIC to purchase from
Seller and for Seller to sell to EPIC all of the outstanding
common stock of SADDLEBACK INVESTMENT SERVICES, INC., a
California corporation (the "Saddleback Stock" and "Saddleback",
respectively); and
WHEREAS, the Board of Directors of EPIC deems it desirable
and in the best interests of EPIC and its stockholders that EPIC
purchase the Saddleback Stock in consideration of issuance by
EPIC to Seller of three million (3,000,000) shares of EPIC common
stock (the "EPIC Shares"); and
WHEREAS, Seller deems it desirable and in the best interests
of Seller that Seller sell the Saddleback Stock to EPIC; and
WHEREAS, EPIC and Seller desire to provide for certain
undertakings, conditions, representations, warranties, and
covenants in connection with the transactions contemplated by
this Agreement; and
WHEREAS, Seller and the Board of Directors of EPIC have
approved and adopted this Agreement, subject to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained, the parties
hereto do hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 "Agreement", "EPIC", "EPIC Shares", "Seller",
"Saddleback" and "Saddleback Stock", respectively, shall have the
meanings defined in the foregoing preamble and recitals to this
Agreement.
1.2 "Closing Date" shall mean 10:00 a.m., local time, March
31, 2003, at Irvine, California, the date on which the parties
hereto shall close the transactions contemplated herein; provided
that the parties can change the Closing Date and place of Closing
to such other time and place as the parties shall mutually agree,
in writing. As of the Closing Date, all Exhibits to this
Agreement shall be complete and attached to this Agreement.
SECTION 2
AGREEMENT FOR PURCHASE AND SALE OF SADDLEBACK STOCK
2.1 Substantive Terms of the Purchase and Sale of
Saddleback Stock. Seller shall sell and deliver to EPIC one
hundred percent (100%) of the issued and outstanding common stock
of Saddleback in a form enabling EPIC, then and there, to become
the record and beneficial owner of said common stock, consisting
of ten thousand (10,000) shares which represent all of the issued
and outstanding common stock of Saddleback. It is acknowledged
by the parties that EPIC is presently the record and beneficial
owner of one hundred thousand (100,000) shares Series A
Convertible Preferred Stock of Saddleback, which constitutes all
of the issued and outstanding preferred stock of Saddleback.
2.2 Consideration Paid by EPIC.
(a) EPIC shall sell and deliver to Seller the
Epic Shares, consisting of three million (3,000,000)
shares of common stock of EPIC. The EPIC Shares shall
be issued pursuant to an exemption from registration
under the Securities Act of 1933 (the "1933 Act") and
from registration under any and applicable state
securities laws. The certificate representing the EPIC
Shares shall bear the restrictive legend set forth in
Rule 144 of the Rules and Regulation of the 1933 Act
and any appropriate legend required under applicable
state securities laws. The EPIC Shares shall be
validly issued and outstanding, fully paid, and non-
assessable.
(b) Following the Closing Date, Saddleback will
become a wholly-owned and operated subsidiary of EPIC.
Seller shall (i) continue to serve as the Chief
Executive Officer of Saddleback and (ii) be elected
President of EPIC and named to the Board of Directors
of EPIC at the earliest practicable date.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF EPIC
EPIC, in order to induce Seller to execute this Agreement
and to consummate the transactions contemplated herein,
represents and warrants to Seller, as follows:
3.1 Organization and Qualification. EPIC is a corporation
duly organized, validly existing, and in good standing under the
laws of Nevada, with all requisite power and authority to own its
property and to carry on its business as it is now being
conducted. EPIC is duly qualified as a foreign corporation and
in good standing in each jurisdiction where the ownership, lease,
or operation of property or the conduct of business requires such
qualification, except where the failure to be in good standing or
so qualified would not have a material, adverse effect on the
financial condition or business of EPIC.
3.2 Ownership of EPIC. EPIC is authorized to issue two classes
of stock of up to 20,000,000 common shares, $0.001 par value per
share, of which approximately 349,327 are currently issued and
outstanding, and of up to 5,000,000 preferred shares, $0.001 par
value per share, of which (a) 1,000,000 shares have been
designated as Series A Convertible Preferred Stock all of which
are issued and outstanding, with Saddleback being the record and
beneficial owner thereof; and (b) 300,000 shares have been
designated as Series B Convertible Preferred Stock, of which
100,000 shares are issued and outstanding.
3.3 Authorization and Validity. EPIC has the requisite
power and is duly authorized to execute and deliver and to carry
out the terms of this Agreement. The board of directors of EPIC
has taken all action required by law, its Articles of
Incorporation, as amended, and Bylaws or otherwise to authorize
the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, subject to the
satisfaction or waiver of the conditions precedent set forth in
Section 8 of this Agreement. Assuming this Agreement has been
approved by all action necessary on the part of Seller, this
Agreement is a valid and binding agreement of EPIC.
3.4 No Defaults. EPIC is not in default under or in violation
of any provision of its Articles of Incorporation, as amended, or
Bylaws. EPIC is not in default under or in violation of any
material provision of any indenture, mortgage, deed of trust,
lease, loan agreement, or other agreement or instrument to which
it is a party or by which it is bound or to which any of its is
subject, if such default would have a material, adverse effect on
the financial condition or business of EPIC. EPIC is not in
violation of any statute, law, ordinance, order, judgment, rule,
regulation, permit, franchise, or other approval or authorization
of any court or governmental agency or body having jurisdiction
over it or any of its properties which, if enforced, would have a
material, adverse effect on the financial condition or business
of EPIC. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated herein,
will conflict with or result in a breach of or constitute a
default under any of the foregoing or result in the creation of
any lien, mortgage, pledge, charge, or encumbrance upon any asset
of EPIC and no consents or waivers thereunder are required to be
obtained in connection therewith in order to consummate the
transactions contemplated by this Agreement.
3.5 SEC Documents; Financial Statements. As of the Closing, the
Company has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant
to the reporting requirements of the Securities Exchange Act of
1934, as amended (the "1934 Act") (all of the foregoing filed
prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents
incorporated by reference therein being hereinafter referred to
as the "SEC Documents"). As of their respective dates, the SEC
Documents complied in all material respects with the requirements
of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none
of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of
their respective dates, the financial statements of the Company
included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto.
Such financial statements have been prepared in substantial
accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as
may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be
condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the
dates thereof and the results of its operations and cash flows
for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). No other
information provided by or on behalf of the Company to Seller
which is not included in the SEC Documents, including, without
limitation, contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstance under which
they are or were made, not misleading. Neither the Company nor
any of its officers, directors, employees or agents have provided
Seller with any material, nonpublic information.
3.6 Absence of Certain Changes. Since the most recent
filing by the Company with the SEC, there has been no material
adverse change and no material adverse development in the
business, properties, operations, financial condition, results of
operations or prospects of the Company. The Company has not
taken any steps, and does not currently expect to take any steps,
to seek protection pursuant to any bankruptcy law nor does the
Company have any knowledge or reason to believe that its
creditors intend to initiate involuntary bankruptcy proceedings.
3.7 Documents. The copies of all agreements and other
instruments that have been delivered by EPIC to Seller are true,
correct, and complete copies of such agreements and instruments
and include all amendments thereto.
3.8 Disclosure. The representations and warranties made by
EPIC herein and in any schedule, statement, certificate, or
document furnished or to be furnished by EPIC to Seller pursuant
to the provisions hereof or in connection with the transactions
contemplated hereby, taken as a whole, do not and will not as of
their respective dates contain any untrue statements of a
material fact, or omit to state a material fact necessary to make
the statements made not misleading.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller, in order to induce EPIC to execute this Agreement
and to consummate the transactions contemplated herein,
represents and warrants to EPIC as follows:
4.1 Organization and Qualification. Saddleback is a
California corporation, duly organized, validly existing, and in
good standing under the laws of the state of California with all
requisite power and authority to own its property and assets and
to carry on its business as it is now being conducted, including
the use of its business name "American National Mortgage".
Saddleback is qualified as a foreign corporation and is in good
standing in each jurisdiction where the ownership, lease, or
operation of property or the conduct of its business requires
such qualification, except where the failure to be in good
standing or so qualified would not have a material, adverse
effect on the financial condition and business of Saddleback.
With respect to those states in which Saddleback, doing business
as American National Mortgage, presently conducts business as a
mortgage lender, Saddleback is duly licensed or approved to do
business as a mortgage lender in each jurisdiction in which such
licensing or approval is required.
4.2 Ownership of Saddleback Stock. Saddleback is authorized to
issue two classes of stock: common stock, consisting of up to
two hundred thousand (200,000) shares, no par value per share,
and preferred stock, consisting of up to one hundred thousand
(100,000) shares, of which one hundred thousand (100,000) shares
have been designated as Series A Convertible Preferred Stock. At
the date hereof, of such authorized shares of common stock, ten
thousand (10,000) shares have been validly issued and are
outstanding, fully paid, and non-assessable. All of the shares
of common stock are owned of record and beneficially by Seller.
As of the date hereof, of such authorized shares of preferred
stock, one hundred thousand (100,000) shares have been validly
issued and are outstanding, fully paid, and non-assessable, all
of which are owned of record and beneficially by Epic. There are
no options, warrants, or other securities exercisable or
convertible into or any calls, commitments, or agreements of any
kind relating to any unissued equity securities of Saddleback.
4.3 Authorization and Validity. Seller has the requisite
power and is duly authorized to execute and deliver and to carry
out the terms of this Agreement. Assuming this Agreement has
been approved by all action necessary on the part of EPIC, this
Agreement is a valid and binding agreement of Seller.
4.4 Conduct and Transactions of Saddleback. During its
current fiscal year, Saddleback conducted the operations of its
business consistent with past practice and used its best efforts
to maintain and preserve its properties, key employees, and
relationships with customers and suppliers. Without limiting the
foregoing, during such period Saddleback did not:
(a) Incur any liabilities except to maintain its
facilities and assets in the ordinary course of its
business;
(b) Declare or pay any dividends on any shares of
capital stock or make any other distribution of assets to
the holders thereof;
(c) Issue, reissue, or sell, or issue options or
rights to subscribe to, or enter into any contract or
commitment to issue, reissue, or sell, any shares of capital
stock or acquire or agree to acquire any shares of capital
stock;
(d) Amend its respective Articles of Incorporation or
Bylaws or merge or consolidate with or into any other
corporation or sell all or substantially all of its assets
or change in any manner the rights of its capital stock or
other securities;
(e) Pay or incur any obligation or liability, direct
or contingent, except in the ordinary course of its
business;
(f) Incur any indebtedness for borrowed money, assume,
guarantee, endorse, or otherwise become responsible for
obligations of any other party, or make loans or advances to
any other party except in the ordinary course of its
business;
(g) Increase in any manner the compensation, direct or
indirect, of any of its officers or executive employees,
except as otherwise disclosed in Exhibit 4.4(g), hereto; or
(h) Make any capital expenditures except in the
ordinary course of its business.
4.5 Compensation Due Employees. Saddleback will not have
any outstanding liability for payment of wages, payroll taxes,
vacation pay (whether accrued or otherwise), salaries, bonuses,
pensions, contributions under any employee benefit plans or other
compensation, current or deferred, under any labor or employment
contracts, whether oral or written, based upon or accruing in
respect of those services of employees of Saddleback that have
been performed prior to the Closing Date, except as specified on
Exhibit 4.5 hereto. On the Closing Date, Saddleback will not
have any unfunded, contingent or other liability under any
defined benefits plan or any other retirement or retirement-type
plan, whether such plan(s) are to continue or are thereupon
terminated, except for the normal on-going obligations for future
contributions under such plan(s) not related, generally or
specifically, to the termination of such plan(s) or except as
specified on Exhibit 4.5 hereto.
4.6 Union Agreements and Employment Agreements. Saddleback
is not a party to any union agreement or any organized labor
dispute. Saddleback has no written or verbal employment
agreements with any of its employees, except as listed in Exhibit
4.6 hereto.
4.7 Contracts and Leases. Except as listed in Exhibit 4.7
hereto, Saddleback is not a party to any written or oral leases,
commitments, or any other agreements. On the Closing Date,
Saddleback has paid or performed in all material respects all
obligations required to be paid or performed by it to such date
and will not be in default under any document, contract,
agreement, lease, or other commitment to which it is a party.
4.8 Insurance. All insurance against losses or damages or
other risks which are in force for the benefit of Saddleback are
set forth in Exhibit 4.8 hereto.
4.9 Liabilities. Saddleback has no liabilities, except as
described in Exhibit 4.9 hereto.
4.10 Proprietary Rights. Saddleback owns or is duly
licensed to use such trademarks and copyrights as are necessary
to conduct its business as presently conducted. The conduct of
business by Saddleback does not, to the best knowledge of
Saddleback, infringe upon the trademarks or copyrights of any
third party. Saddleback owns the rights to the fictitious
business name in all jurisdictions in which it is presently
operating.
4.11 Internal Controls.
(a) There have been no transactions except in
accordance with management's general or specific
authorization.
(b) Saddleback has devised and maintained respective
systems of internal accounting controls sufficient to
provide reasonable assurances that transactions are recorded
as necessary (i) to permit preparation of financial
statements in conformity with generally accepted accounting
principles and (ii) to maintain accountability for assets
and expenses.
4.12 Contracts and Agreements. Saddleback is not a party to
any material contracts or agreements in respect of the operation
of its business, except as listed in Exhibit 4.12 hereto.
4.13 Minute Books. The minute books of Saddleback contain
true, complete, and accurate records of all meetings and other
corporate actions of its shareholders and Board of Directors, and
true and accurate copies thereof have been delivered to counsel
for EPIC prior to the Closing Date. The signatures appearing on
all documents contained therein are the true signatures of the
persons purporting to have signed the same.
4.14 Litigation. Except as set forth in Exhibit 4.14, there
are no actions, suits, proceedings, orders, investigations, or
claims (whether or not purportedly on behalf of Saddleback)
pending against or affecting Saddleback at law or in equity or
before or by any federal, state, municipal, or other governmental
department, commission, board, agency, or instrumentality,
domestic or foreign, nor has any such action, suit, proceeding,
or investigation been pending or threatened in writing during the
12-month period preceding the date hereof, which, if adversely
determined, would materially and adversely affect the financial
condition of Saddleback or which seeks to prohibit, restrict, or
delay the consummation of the stock sale contemplated hereby.
Saddleback is not operating under or subject to, or in default
with respect to, any order, writ, injunction, or decree of any
court or federal, state, municipal, or other governmental
department, commission, board, agency, or instrumentality.
4.15 Taxes. At the Closing Date, all tax returns required to be
filed with respect to the operations or assets of each of
Saddleback prior to Closing Date have been correctly prepared in
all material respects and timely filed, and all taxes required to
be paid in respect of the periods covered by such returns have
been paid in full or adequate reserves have been established for
the payment of such taxes. Except as set forth in Exhibit 4.15,
as of the Closing Date, Saddleback has not requested any
extension of time within which to file any tax returns, and all
known deficiencies for any tax, assessment, or governmental
charge or duty shall have been paid in full or adequate reserves
have been established for the payment of such taxes. The
Saddleback tax returns are true and complete in all material
respects. No audits by federal or state authorities are
currently pending or threatened.
4.16 No Defaults. Saddleback is not in default under or in
violation of any provision of its Articles of Incorporation or
Bylaws. Saddleback is not in default under or in violation of
any material provision of any indenture, mortgage, deed of trust,
lease, loan agreement, or other agreement or instrument to which
it is a party or by which it is bound or to which any of its is
subject, if such default would have a material, adverse effect on
the financial condition or business of Saddleback. Saddleback is
not in violation of any statute, law, ordinance, order, judgment,
rule, regulation, permit, franchise, or other approval or
authorization of any court or governmental agency or body having
jurisdiction over it or any of its properties which, if enforced,
would have a material, adverse effect on the financial condition
or business of Saddleback. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions
contemplated herein, will conflict with or result in a breach of
or constitute a default under any of the foregoing or result in
the creation of any lien, mortgage, pledge, charge, or
encumbrance upon any asset of Saddleback and no consents or
waivers thereunder are required to be obtained in connection
therewith in order to consummate the transactions contemplated by
this Agreement.
4.17 Documents. The copies of all agreements and other
instruments that have been delivered by Seller to EPIC are true,
correct, and complete copies of such agreements and instruments
and include all amendments thereto.
4.18 Disclosure. The representations and warranties made by
Seller herein and in any schedule, statement, certificate, or
document furnished or to be furnished by Saddleback and/or Seller
to EPIC pursuant to the provisions hereof or in connection with
the transactions contemplated hereby taken as a whole do not and
will not as of their respective dates contain any untrue
statements of a material fact, or omit to state a material fact
necessary to make the statements made not misleading.
SECTION 5
INVESTIGATION; PRESS RELEASE
5.1 Investigation.
(a) EPIC acknowledges that it has made an
investigation of Saddleback to confirm, among other things,
the assets, liabilities, and status of business of
Saddleback and the cash position, accounts receivable,
liabilities, and mortgages in process. In the event of
termination of this Agreement, EPIC will deliver to Seller
all documents, work papers, and other materials and all
copies thereof obtained by EPIC, or on its behalf, from
Saddleback or Seller, whether obtained before or after the
execution hereof, will not use, directly or indirectly, any
confidential information obtained from Saddleback or Seller
hereunder or in connection herewith, and will keep all such
information confidential and not used in any way detrimental
to Saddleback or Seller except to the extent the same is
publicly disclosed by Saddleback or Seller.
(b) Seller acknowledges that he has made an
investigation of EPIC, which has included, among other
things, the opportunity of discussions with executive
officers of EPIC, and its accountants, investment bankers,
and counsel. In the event of termination of this Agreement,
Seller will deliver to EPIC all documents, work papers, and
other materials and all copies thereof obtained by him, or
on his behalf, from EPIC, whether obtained before or after
the execution hereof and will not use, directly or
indirectly, any confidential information obtained from EPIC
hereunder or in connection herewith, and will keep all such
information confidential and not used in any way detrimental
to EPIC, except to the extent the same is publicly disclosed
by EPIC.
(c) Except in the event that any party hereto
discovers in the course of his or its respective
investigation any breach of a representation or warranty by
the other party hereto and does not disclose it to such
other party prior to the Closing Date, no investigation
pursuant to this Section 5.1 shall affect or be deemed to
modify any representation or warranty made by any party
hereto.
5.2 Press Release. EPIC and Seller shall agree with each
other as to the form and substance of any press releases and the
filing of any documents with any federal or state agency related
to this Agreement and the transactions contemplated hereby and
shall consult with each other as to the form and substance of
other public disclosures related thereto; provided, however, that
nothing contained herein shall prohibit either party from making
any disclosure that its counsel deems necessary.
SECTION 6
BROKERAGE
6.1 Brokers and Finders. Except as set forth in Exhibit
6.1, neither EPIC nor Seller, or any of their respective
officers, directors, employees, or agents, has employed any
broker, finder, or financial advisor or incurred any liability
for any fee or commissions in connection with initiating the
transactions contemplated herein. Each party hereto agrees to
indemnify and hold the other party harmless against or in respect
of any commissions, finder's fees, or brokerage fees incurred or
alleged to have been incurred with respect to initiating the
transactions contemplated herein as a result of any action of the
indemnifying party.
SECTION 7
CLOSING AGREEMENTS AND POST-CLOSING
7.1 Closing Agreements. On the Closing Date, the following
activities shall occur, the following agreements shall be
executed and delivered, and the respective parties thereto shall
have performed all acts that are required by the terms of such
activities and agreements to have been performed simultaneously
with the execution and delivery thereof as of the Closing Date:
(a) Seller shall have executed and delivered documents
to EPIC sufficient then and there to transfer record and
beneficial ownership to EPIC of the Saddleback Stock,
consisting up ten thousand (10,000) shares of Saddleback
common stock;
(b) EPIC shall have delivered to Seller the EPIC Shares,
consisting of three million (3,000,000) shares of EPIC common
stock;
SECTION 8
CONDITIONS PRECEDENT TO EPIC'S OBLIGATIONS TO CLOSE
The obligations of EPIC to consummate this Agreement are
subject to satisfaction on or prior to the Closing Date of the
following conditions:
8.1 Representations and Warranties. The representations
and warranties of Seller contained in this Agreement shall be
true and correct in all material respects on and as of the
Closing Date, and Seller shall have performed in all material
respects all of his obligations hereunder theretofore to be
performed.
8.2 Other. The joint conditions precedent in Section 10
hereof shall have been satisfied and all documents required for
Closing shall be acceptable to Counsel for EPIC.
SECTION 9
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS TO CLOSE
The obligation of Seller to consummate this Agreement is
subject to the satisfaction on or prior to the Closing Date of
the following conditions:
9.1 Representations and Warranties. The representations
and warranties of EPIC contained in this Agreement shall be true
and correct in all material respects on and as of the Closing
Date, and EPIC shall have performed in all material respects all
of its obligations hereunder theretofore to be performed.
9.2 Other. The joint conditions precedent in Section 10
hereof shall have been satisfied.
SECTION 10
JOINT CONDITIONS PRECEDENT
The obligations of EPIC and Seller to consummate this
Agreement shall be subject to satisfaction or waiver in writing
by all parties of each and all of the following additional
conditions precedent at or prior to the Closing Date:
10.1 Other Agreements. All of the agreements contemplated
by Section 7.1 of this Agreement shall have been executed and
delivered, and all acts required to be performed thereunder as of
the Closing Date shall have been duly performed, including,
without limitation, completion of all exhibits to this Agreement.
10.2 Absence of Litigation. At the Closing Date, there
shall be no action, suit, or proceeding pending or threatened
against any of the parties hereto by any person, governmental
agency, or subdivision thereof, nor shall there be pending or
threatened any action in any court or administrative tribunal,
which would have the effect of inhibiting the consummation of the
transactions contemplated herein.
SECTION 11
CONFIDENTIALITY
11.1 EPIC acknowledges that its principals have, and will,
acquire information and materials from Seller and/or Saddleback
and knowledge about the technology, business, products,
strategies, customers, clients and suppliers of the Saddleback
and that all such information, materials and knowledge acquired,
are and will be trade secrets and confidential and proprietary
information of Saddleback (collectively, such acquired
information, materials, and knowledge are the "Confidential
Information"). EPIC, itself, and behalf of its principals,
covenants to hold such Confidential Information in strict
confidence, not to disclose it to others or use it in any way,
commercially or otherwise, except in connection with the
transactions contemplated by this Agreement and not to allow any
unauthorized person access to such Confidential Information.
11.2 The Confidential Information disclosed by Seller or
Saddleback to EPIC shall remain the property of the disclosing
party.
11.3 EPIC, and principals, shall maintain in secrecy all
Confidential Information disclosed to them by Seller or
Saddleback using not less than reasonable care. EPIC, and its
principals, shall not use or disclose in any manner to any third
party any Confidential Information without the express written
consent of Seller unless or until the Confidential Information
is:
(a) publicly available or otherwise in the public
domain; or
(b) rightfully obtained by any third party without
restriction; or
(c) disclosed by Seller or Saddleback without
restriction pursuant to judicial action, or government
regulations or other requirements.
11.4 The obligations of EPIC under Sections 11.1, 11.2, and
11.3 of this Agreement shall expire one year from the date hereof
as to Confidential Information consisting of commercial and
financial information and two years from the date hereof as to
Confidential Information consisting of technical information.
For this purpose, technical information shall include without
limitation all developments, inventions, innovations, designs,
discoveries, trade secrets and know-how, whether or not
patentable or copyrightable.
SECTION 12
TERMINATION AND WAIVER
12.1 Termination. This Agreement may be terminated and
abandoned on the Closing Date by:
(a) the mutual consent in writing of the parties hereto;
(b) EPIC, if the conditions precedent in Sections 8
and 10 of this Agreement have not been satisfied or waived
by the Closing Date; and
(c) Seller, if the conditions precedent in Sections 9
and 10 of this Agreement have not been satisfied or waived
by the Closing Date.
If this Agreement is terminated pursuant to Section
12.1, the parties hereto shall not have any further obligations
under this Agreement, and each party shall bear all costs and
expenses incurred by it.
SECTION 13
NATURE AND SURVIVAL OF REPRESENTATIONS, ETC.
13.1 All statements contained in any certificate or other
instrument delivered by or on behalf of EPIC or Seller pursuant
to this Agreement or in connection with the transactions
contemplated hereby shall be deemed representations and
warranties by such party. All representations and warranties and
agreements made by EPIC or Seller in this Agreement or pursuant
hereto shall survive the Closing Date hereunder until the
expiration of the 12th month following the Closing Date.
SECTION 14
MISCELLANEOUS
14.1 Notices. Any notices or other communications required
or permitted hereunder shall be sufficiently given if written and
delivered in person or sent by registered mail, postage prepaid,
addressed as follows:
to Seller: Xxxxxxx X. Xxxxxx
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
to EPIC: EPIC Financial Corporation
Attention: Xxxxx Xxxxxxxx, President
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
copy to: Xxxxx Xxxx LLP
(which shall not Attention: Xxxxxxx X. Xxxx, Esq.
constitute notice) 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
or such other address as shall be furnished in writing by the
appropriate person, and any such notice or communication shall be
deemed to have been given as of the date so mailed.
14.2 Time of the Essence. Time shall be of the essence of
this Agreement.
14.3 Costs. Each party will bear the costs and expenses
incurred by it in connection with this Agreement and the
transactions contemplated hereby.
14.4 Cancellation of Agreement. In the event that this
Agreement is canceled by mutual agreement of the parties or by
failures of any of the conditions precedent set forth in
Paragraphs 8, 9 and 10, neither Seller nor EPIC shall be entitled
to any damages, fees, costs or other consideration.
14.5 Entire Agreement and Amendment. This Agreement and
documents delivered at the Closing Date hereunder contain the
entire agreement between the parties hereto with respect to the
transactions contemplated by this Agreement and supersedes all
other agreements, written or oral, with respect thereto. This
Agreement may be amended or modified in whole or in part, and any
rights hereunder may be waived, only by an agreement in writing,
duly and validly executed in the same manner as this Agreement or
by the party against whom the waiver would be asserted. The
waiver of any right hereunder shall be effective only with
respect to the matter specifically waived and shall not act as a
continuing waiver unless it so states by its terms.
14.6 Counterparts. This Agreement may be executed in one or
more counterparts each of which shall be deemed to constitute an
original and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other
party.
14.7 Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the laws of the
State of California.
14.8 Attorneys' Fees and Costs. In the event any party to
this Agreement shall be required to initiate legal proceedings to
enforce performance of any term or condition of this Agreement,
including, but not limited to, the interpretation of any term or
provision hereof, the payment of moneys or the enjoining of any
action prohibited hereunder, the prevailing party shall be
entitled to recover such sums, in addition to any other damages
or compensation received, as will reimburse the prevailing party
for reasonable attorneys' fees and court costs incurred on
account thereof (including, without limitation, the costs of any
appeal) notwithstanding the nature of the claim or cause of
action asserted by the prevailing party.
14.9 Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their
respective heirs, executors, personal representatives,
successors, and assigns, as the case may be.
14.10 Access to Counsel. Each party hereto acknowledges
that each has had access to legal counsel of her or its own
choice and has obtained such advice therefrom, if any, as such
party has deemed necessary and sufficient prior to the execution
hereof. Each party hereto acknowledges that the drafting of this
Agreement has been a joint effort and any ambiguities or
interpretative issues that may arise from and after the execution
hereof shall not be decided in favor or, or against, any party
hereto because the language reflecting any such ambiguities or
issues may have been drafted by any specific party or her or its
counsel.
14.11 Captions. The captions appearing in this
Agreement are inserted for convenience of reference only and
shall not affect the interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
EPIC FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxxx
--------------------
Xxxxx Xxxxxxxx
President
"Buyer"
/s/ Xxxxxxx X. Xxxxxx
------------------------
XXXXXXX X. XXXXXX
"Seller"
Purchase Agreement
for
Acquisition of
Saddleback Investment Services, Inc.
by
Epic Financial Corporation
SCHEDULE OF ISSUEES
-------------------
Xxxxxxx X.Xxxxxx 1,500,000 shares
Xxxx X. Xxxxxxx 100,000 shares
Xxxxxxx X. Xxxxxxxx
and Xxxxxxx X. Xxxxxxxx 100,000 shares
Xxxxxx Xxxxxx 300,000 shares
Danbury Consultants, Inc. 225,000 shares
NFC Consultants, Inc. 275,000 shares
Xxxxx X. Sun 500,000 shares
