AGREEMENT FOR PURCHASE AND SALE OF STOCK
Exhibit 2.1
AGREEMENT FOR PURCHASE AND SALE OF STOCK
AND PLAN OF REORGANIZATION
THIS AGREEMENT IS MADE this 10th day of May, 2010 by and among MADISON AVE. MEDIA, INC. a Delaware Corporation with its principal office at 0000 Xx. Xxxxxxx Xxx., Xxxxx 000, Xxxx Xxxxx, XX 00000 (hereinafter referred to as "Purchaser"); PROMARK DATA AND MEDIA GROUP LLC, a Florida Limited Liability Company with its principal office at 0000 Xx. Xxxxxxx Xxx., Xxxxx 000, Xxxx Xxxxx, XX 00000 (hereinafter referred to as "Acquired Company"); and the Selling Shareholders of Acquired Company set forth in Exhibit "A" attached hereto (hereinafter "Selling Shareholders").
WITNESSETH:
WHEREAS, the parties desire that Purchaser shall acquire 100% of the issued and outstanding capital stock of the Acquired Company from the Selling Shareholders, in exchange for the capital stock of Purchaser in the amount and series as set forth in Exhibit "A" attached hereto; and
WHEREAS, it is the intention of all parties that the exchange of the capital stock contemplated herein shall constitute a "reorganization" as defined in Section 368(a)(1)(B) of the Internal Revenue Code of 1986;
NOW, THEREFORE, in consideration of these premises, the parties hereto agree as follows:
1. EXCHANGE OF SHARES. The Selling Shareholders and the Acquired Company agree to exchange with the Purchaser 2,000,000 Membership Shares representing 100% of the issued and outstanding capital stock of the Acquired Company in exchange of 33,000,000 Shares of fully-paid and non-assessable Common Stock of the Purchaser, on a pro-rata basis as set forth in Exhibit “A” hereto.
2. TAX-FREE EXCHANGE. It is intended by all parties hereto that the exchange of capital stock contemplated herein shall constitute a "reorganization" as defined in Section 368(a)(1)(B) of the Internal Revenue Code of 1986.
3. DELIVERY OF THE STOCK AT CLOSING. The Closing of this transaction shall be on or before May 31, 2010. At the time of the closing of this transaction, the Selling Shareholders and the Acquired Company shall deliver to Purchaser the stock certificates representing the Shares purchased herein duly issued to Purchaser together with such Revenue Stamps as may be required. Purchaser shall deliver to Selling Shareholders written instructions in the form of a "window ticket" to Signature Stock Transfer Company, as Transfer Agent for the Purchaser, for the issuance and delivery of the Shares of Common Stock of the Purchaser to the Selling Shareholders.
4. REPRESENTATIONS OF THE ACQUIRED COMPANY. The Acquired Company represents and warrants to the Purchaser as follows:
4.1. That the Acquired Company was duly organized in the manner set forth below and that the Certificates of Organization have not been revoked or canceled nor has the Corporation been dissolved;
4.2. Other than as disclosed on Exhibit attached hereto (if any), there are no lawsuits pending against the Acquired Company or its Officers or Directors, nor are there any such lawsuits threatened or anticipated, nor are there any judgments, warrants, or levies outstanding against the Acquired Company, its subsidiaries, or its property, nor are there any tax examinations or proceedings pending relating to taxes or other assessments against the Acquired Company, nor has the Acquired Company at any time taken any insolvency or bankruptcy actions;
4.3. That the Acquired Company has entered into certain Letters of Intent, described in Exhibit “B” hereto, which Letters of Intent are assignable to Purchaser, and which Letters of Intent remain in full force and effect;
4.4. That all of the chattels, trade fixtures, motor vehicles, and equipment owned or utilized by the Acquired Company are free and clear of all liens and encumbrances, except for such liens or security agreements as are set forth in the Balance Sheet of the Acquired Company heretofore provided to Purchaser;
4.5. The Consolidated Balance Sheet of the Acquired Company as of March 31, 2010, a copy of which has heretofore been provided to Purchaser, has been prepared in accordance with generally accepted accounting principles consistently applied and accurately and fairly presents the financial condition and liabilities of the Acquired Company as of such date, and that the Selling Shareholders and the Acquired Company shall be liable to Purchaser for any undisclosed liabilities or claims which may appear or be made subsequent to the Closing Date;
4.6. The Acquired Company is duly qualified and entitled to own or lease its respective properties and to carry on its business all as and in the places where such properties are now owned or such businesses are conducted;
4.7. The Acquired Company has good marketable title to all of the property and assets (including title in fee simple to all real property) included in the Balance Sheet of the Acquired Company, except, however, property and assets in non-material amounts sold in the ordinary course of business since the date of such Balance Sheet, and that all of the properties and assets are free of all liens, encumbrances, or claims except as set forth in the Balance Sheet;
4.8. The Acquired Company is not party to any pending or threatened litigation which might adversely affect the financial condition, business operations, or properties of the Acquired Company, nor to the knowledge of the Acquired Company is there any threatened or pending governmental or regulatory investigation, inquiry, or proceeding involving the Acquired Company except as disclosed herein;
4.9. All returns for income taxes, surtaxes, and excess profits taxes of the Acquired Company for all periods up to the date of Closing have been duly prepared and filed in good faith and all taxes and assessments shown thereon have been paid or accrued on the Acquired Company's books; all state franchise taxes and real and personal property taxes have been paid as of the dates due; and no proceeding or other action has been taken for the assessment or collection of additional taxes for any such periods;
4.10. The business, properties and assets of the Acquired Company have not, since the date of the Balance Sheet, been materially and adversely affected as the result of any fire, explosion, natural disaster, governmental act, cancellation of contracts, or any other event;
4.11. No representation by the Acquired Company, the Selling Shareholders or by its Officers made in this Agreement and no statement made in any certificate furnished in connection with this transaction contains or will contain any knowingly untrue statement of a material fact or omits or will omit to state any material fact necessary to make such statement, representation or warranty not misleading to a prospective purchaser of the stock of the Acquired Company who is seeking full information as to the Acquired Company and its business affairs.
4.12. The Acquired Company is a Limited Liability Company duly organized and existing under the laws of the State of Florida, with an authorized capitalization as set forth in its Certificate of Organization attached hereto as an Exhibit; that at the time of Closing it will have issued and outstanding capital stock as set forth in Exhibit "A" attached hereto; it does not have authorized, issued, or outstanding any other shares of stock of any class or any subscription or other rights to the issuance or receipt of shares of its capital stock; all voting rights are vested exclusively in such capital stock.
5. DELIVERY OF CORPORATE RECORDS AT CLOSING. The Selling Shareholders and the Acquired Company shall cause to be delivered to Purchaser at the time of closing the Corporate Minute Books, Stock Certificate Ledgers and unissued Certificates, and the Corporate Seals of the Acquired Company.
6. RESIGNATION OF OFFICERS AND DIRECTORS OF ACQUIRED COMPANY. At the time of closing, the Acquired Company shall provide to the Board of Directors of the Purchaser written resignations of the Directors and Officers of the Purchaser, effective immediately, and shall cause to be elected as Directors of the Acquired Company those persons nominated by the Board of Directors of the Purchaser.
7. UNDERTAKINGS BY THE ACQUIRED COMPANY AND PURCHASER.
7.1. The Officers and Directors of the Acquired Company shall not cause, suffer or permit the Acquired Company, subsequent to the date hereof and prior to the delivery of the Shares as contemplated hereunder, to issue any additional shares or securities; make any distribution to its shareholders; mortgage, pledge, or subject to lien or encumbrance any of its properties or assets except in the ordinary course of its business; sell or transfer any of its assets, tangible or intangible, except in the ordinary or usual course of business; incur or become liable for any obligations or liabilities except for current liabilities incurred in the ordinary and usual course of business; or increase the rate of compensation of its Officers;
7.2. During the period prior to the closing date hereunder the Acquired Company and the Purchaser shall conduct its business operations in the usual and normal course.
8. REPRESENTATIONS BY THE PURCHASER. The Purchaser represents and warrants to the Acquired Company as follows:
8.1. The Purchaser was incorporated in 2008 pursuant to the laws of the State of Delaware, with an authorized capitalization of 150,000,000 Shares of Common Stock ($.0001 par value).
8.2. The audited financial statements for the year ended August 31, 2009 and the unaudited financial statements for the six months ended February 28, 2010 heretofore provided to the Acquired Company fully and accurately set forth the stockholdings, capitalization, obligations, management structure, business operations, and financial condition of the Purchaser, and no material changes have occurred that would materially affect said statements.
8.3. The Purchaser's securities have been registered for public sale pursuant to a Registration Statement filed under the Securities Act of 1933, as amended, and declared effective by the Securities and Exchange Commission, and that all reports required to be filed by the Purchaser pursuant to the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934 have been duly filed as of the date of the Closing.
9. CONDITIONS PRECEDENT TO CLOSING. All obligations of Purchaser under this Agreement are subject to the fulfillment, on or prior to the closing date, of each of the following conditions:
9.1. That the representations of the Acquired Company and of the Purchaser shall be true at and as of the closing date as though such representations were made at and as of such time;
9.2. That Purchaser shall have received a written opinion, dated on the closing date, of counsel representing the Acquired Company, to the effect that the Acquired Company has been duly incorporated and is in good standing under the laws of the State of its organization with a capitalization as represented in this Agreement; that the Acquired Company is duly licensed or qualified to do business in any and all States or jurisdictions in which it does business or where in the opinion of Counsel such qualification is required; that such counsel knows of no litigation, investigation, or governmental proceeding pending or threatened against the Acquired Company which might result in any material adverse change in the business, properties, or financial condition of the Acquired Company or in any liability on the part of the Acquired Company; and that the assignment and delivery of the Shares of the Acquired Company pursuant to this Agreement will vest in Purchaser all right, title and interest in and to such Shares, free and clear of all liens, encumbrances and equities.
9.3. That Purchaser shall have received a certificate dated on the closing date and signed by the President of the Acquired Company, that since the date of this Agreement the Acquired Company has not done or permitted to be done any of the acts or things prohibited by this Agreement;
9.4. That the auditors and accountants appointed by the Purchaser to examine the books and records of the Acquired Company shall not as of the closing date have rendered a report to Purchaser stating that the financial condition of Acquired Company is not substantially as represented herein or that in their opinion the Acquired Company has contingent liabilities material in amount beyond that described in the Balance Sheet annexed hereto or as disclosed herein;
9.5. That no claim or liability not fully covered by insurance shall have been asserted against the Acquired Company nor has it suffered any loss on account of fire, flood, accident or other calamity of such a character as to materially adversely affect their financial condition, regardless of whether or not such loss shall have been insured, and that Purchaser shall have received on the closing date a certificate signed by the President of the Acquired Company so stating;
9.6. That all covenants and indemnifications made herein by the Acquired Company which are to be performed at or prior to closing shall have been duly performed;
10. APPROVALS AND RATIFICATIONS. All transactions contemplated by this Agreement shall be subject to the approval and ratification of the Boards of Directors and Shareholders of the Acquired Company and of the Purchaser, and to the approval of Counsel for the Acquired Company and Purchaser.
11. CLOSING DATE. The closing under this Agreement shall take place at the offices of Purchaser on or about May 31, 2010, and that all other required approvals and ratifications shall be obtained by the respective parties at least 48 hours prior thereto.
12. NOTICES. All notices under this Agreement shall be in writing and addressed to the parties at the addresses hereinabove set forth, and shall be mailed by certified mail, return receipt requested.
13. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns, provided, however, that this Agreement cannot be assigned by any party except by or with the written consent of all parties hereto. Nothing herein expressed or implied is intended or shall be construed to confer upon or give any person, firm or corporation other that the parties hereto and their respective legal representatives, successors and assigns any rights or benefits under or by reason of this Agreement.
14. LAW GOVERNING. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.
15. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties and supersedes and cancels any and all prior discussion, negotiations, undertakings and agreements between the parties relating to the subject matter hereof.
17. CAPTIONS. The captions used herein are for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement.
18. WAIVER, AMENDMENT or MODIFICATION. The conditions of this Agreement which may be waived may only be waived by notice to the other party waiving such condition. The failure of any party at any time or times to require performance of any provision hereof (other than by written waiver) shall in no manner affect the right at a later time to enforce the same. This Agreement may not be amended or modified except by a written document duly executed by all of the parties hereto.
19. RULES OF CONSTRUCTION. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles; (c) "or" is not exclusive; and (d) words in the singular may include the plural and in the plural include the singular.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have respectively executed this Agreement as of the day and year first written above.
PURCHASER: MADISON AVE. MEDIA, INC.
By:______________________________
ACQUIRED COMPANY: PROMARK DATA AND MEDIA GROUP LLC
By:______________________________
SELLING SHAREHOLDERS: Attached Hereto as Exhibit "A"
"EXHIBIT "A"
LIST OF SELLING SHAREHOLDERS
EXHIBIT “B”
LETTERS OF INTENT
