EXHIBIT 10.1
AGREEMENT
Agreement made this 15th day of November, 1996, by and between Baseball
Properties, Inc., a Delaware corporation having its principal place of
business at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 ("BP"), and
ThermaFreeze, Inc., a Nevada corporation having its principal place of
business at 000-X Xxxxxxxx Xxxxx, Xxxxxx, XX 00000 ("THERMA"), and
Xxxxxx Xxxxxxxx, an individual living at 0 Xxxxxxx Xxxx, Xxxxxxxxx, XX,
00000 ("TS").
WITNESSTH
WHEREAS, TS desires to acquire and BP owns and desires to sell and
transfer to TS all of Its assets in exchange for TS acceptance of all
the outstanding liabilities of BP.
WHEREAS, BP desires to acquire and THERMA owns and desires to sell and
transfer to BP, all of its assets subject to liabilities, in exchange for
4,800,000 shares of BP authorized but unissued common stock upon the terms
and conditions set forth herein and the parties hereto desire to adopt the
Plan of Reorganization such that it qualifies under Section 368 of the
Internal Revenue Code.
WHEREAS, the parties have executed a Memorandum dated October 18, 1996,
which defines the respective rights and obligations of the parties hereto
but is superseded in its entirety by this definitive Agreement among the
parties.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN CONTAINED,
THE PARTIES AGREE AS FOLLOWS:
BP's Representations and Warranties. BP represents and warrants as follows:
(a) BP is a corporation duly organized, validly existing and in good
standing under the laws of Delaware and has the corporate power to own
its properties and to carry on its business as now being conducted. The
nature of the business now being conducted by BP, the character of the
properties owned by it, or any other state of facts, does not require BP
to be qualified to do business as a foreign corporation in any jurisdiction.
(b) Capitalization. The total authorized capital stock of BP consists of
20,000,000 shares of common stock, $.001 par value. There will be no
outstanding subscriptions, options, warrants, agreements or other
commitments or rights of any type to purchase or acquire any securities
of BP which are convertible into or exchangeable for any shares of capital
stock of BP.
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(c) Authority: The Board of Directors voted unanimously for the
following Resolutions::
(i) Accept the offer of TS to purchase from BP all of the
assets, including the two baseball teams, as of
November 14, 1996, in consideration. TS would, assume
all outstanding Liabilities of BP as of November 14, 1996.
(ii) Accept the offer of Therma to sell all of its assets,
including its name, THERMAFREEZE, INC., in
consideration of BP assuming all outstanding liabilities
of Therma, as of November 15, 1996 (per Schedule A, attached).
(e) Accept, as of November 15, 1996, the resignation of Xxxxxx Xxxxxxxx
as President of BP .
(f) Xxxxxx Xxxxxx will be elected President of BP on November 15, 1996.
(g) BP will not purchase and otherwise provide or arrange funding for any
entity whose business is competitive with or similar to the present
business of THERMA.
(h) BP will not take, agree to take, or knowingly permit to be taken, any
action, or do, or knowingly permit to be done, anything in the conduct
of its business, or otherwise, which would be contrary to or in breach
of any of the terms or provisions of this Agreement, or which would
cause any of the representations of BP contained herein to be or become
untrue in any material respect at the Closing Date.
(i) Representations True: Covenant Performed. The representations and
warranties by BP shall be true and correct, as of the Closing Date,
with the same force and effect as though such representations
and warranties had been made on the Closing Date, and all terms and
conditions and covenants of this Agreement complied with and performed
by BP on or before the Closing Date shall have been duly complied with
and performed.
(j) No Material Adverse Change. The business and properties of BP shall
not have been materially adversely affected in any way as a result
of fire, accident or other casualty (whether or not covered by
insurance) any labor disturbance, or act of God, public authority or
public enemy, which would interfere in any substantial manner with
the operations of BP.
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(k) No Violation of Agreements. The consummation of this Agreement shall
not violate any Agreement or instrument to which BP is a party or is
subject.
(l) Conflict or Default. BP cannot provide support or proof that this
contract would not be in conflict or default with some statute,
regulation or ordinance of some governmental authority, or conflict
which may result in breach of any term, condition or provision of the
Certificate of Incorporation of BP or of any Agreement, deed,
contract, mortgage, indenture, writ, order, decree, legal obligation or
instrument to which BP is a party or by which it or may be bound, or
constitute a default thereunder, or encumbrance, or restriction of any
nature whatsoever with respect to the properties or assets of BP, or
give to others any interest or rights, Including rights of termination,
acceleration or cancellation in or with respect to any of the
properties, or assets, contracts or business of BP.
(m) Litigation. There are no actions, suits, investigations, or
proceedings pending of material nature, or to the knowledge of BP, the
performance of the terms and conditions hereof, or the consummation of
the transactions contemplated hereby in any court or by or before any
governmental body or agency, including any claim, proceeding or
litigation for the purpose of challenging, enjoining or preventing the
execution, delivery or consummation of this Agreement; and BP does not
know of any state of facts which would give rise to any such action,
suit, investigation or proceeding. BP is not subject to any order,
judgement, decree, stipulation or consent or any agreement with any
governmental body or agency, which affects or may affect its business
operations. Reports.
(n) BP common stock is traded on the OTC Bulletin Board and is listed
under the symbol THFZ.
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2. XXXXXX XXXXXXXX Representation and Warranties: TS represents and warrants
follows:
(a) TS is an individual person, and is acting on his own behalf in this
transaction.
(b) TS has been employed as the President of BP since its inception in
May, 1995.
(c) As the President of Baseball Properties, TS has agreed with the BP
Board of Directors that the stockholders of Baseball Properties
would be better served by BP withdrawing from the business of
managing Minor League Baseball Teams, and concentrating upon the
potential of the product that is being acquired from Therma by BP.
(d) TS does have the expertise and desires to continue in the operation
of Minor League Baseball Teams.
(e) Subject to the terms and conditions of this AGREEMENT, TS agrees to
buy from BP on Closing Day (later defined) all of the assets of BP
including the equity which BP holds in two teams, Albany Diamond
Dogs and Johnstown Steal. TS in consideration of receiving these
assets will take over all of the outstanding liabilities of BP exist
prior to BP acquisition of Therma Asset and Liabilities. Exhibit B
more fully describes both the assets and the liabilities that are
involved in the transfer from BP to TS.
(f) At the end of Closing Day, TS will resign as President of BP and will
cease to be an employee of BP.
(g) TS agrees to file all Tax Returns that have not been filed by BP
during its period of operation that began in May 1995 to the date of
November 15, 1996. This will includes all Payroll Tax Returns, all
Sales Taxes Return, and Franchise Tax Returns due to any City,
County, State, and Federal Governments.
(f) In the event that there is any assessment for unpaid tax, penalty, or
interest, TS agrees to accept the liability as his personal debt, and
will by paid by him.
(g) TS guarantees to protect from liability or loss to BP, or any of its
future officers, as a result of delinquency in filing, or payment, of
any Tax Returns due to any governmental agency for the period of
operation of BP from May 1995 to November 15, 1996.
(h) TS agrees to provide BP with a complete set of Accounting Records;
General Ledger, Books of Original Entry , Bank Statements, and copies
of Tax Returns for all Governmental Agencies for every period of
operation of BP from May 1, 1995 to November 15, 1996.
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(i) TS represents that, to his knowledge, there are no suits,
investigations, or proceedings pending of material nature against
either BP or TS that would prevent the performance of the terms and
conditions of this AGREEMENT, TS is not subject to any order,
judgement, decree, stipulation or consent or any agreement with any
governmental body or agency, which affects or may affect TS in the
future operation of the management of the Minor League Teams that
he will obtain from BP as a result of this AGREEMENT.
(j) TS cannot provide support or proof that this contract would not be in
conflict or default with some statute, regulation or ordinance
of some governmental authority which may result in breach of any
term, condition or provision of the Certificate of Incorporation
of BP or of any Agreement, deed, contract, mortgage. indenture,
writ, order, decree, legal obligation or instrument to which BP
is a party or by which it or may be bound, or constitute a default
thereunder, or encumbrance, or restriction of any nature whatsoever
with respect to the properties or assets of BP, or give to others
any interest or rights, including rights of termination, acceleration
or cancellation in or with respect to any of the properties; or
assets, contracts or business of BP.
(k) On Closing Date TS shall deliver copies of AGREEMENT to BP and
to Therma, dated and signed.
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THERMA'S Representation and Warranties. THERMA represents and warrants and
agrees as follows:
(a) THERMA is a corporation duly organized, validly existing and in good
standing under the laws of the state of Nevada and has the corporate
power to own its property and to carry on its business as now
conducted.
(b) THERMA has no wholly owned subsidiaries or affiliates as that term is
used in the regulations promulgated under the Securities Act of 1933,
as amended (the "ACT").
(c) THERMA has total authorized capital stock of 20,000,000 shares of
common stock, $.001 par value and 5,000,000 Preferred stock, $.001
par value. There are 4,800,000 shares of Common Stock issued. All of
these shares are duly and validly issued, fully paid and non-
assessable.
(d) THERMA has furnished to BP an unaudited financial statement and notes
thereto as of November 15, 1996, attached hereto as Exhibit A, is
a true, correct and complete copy thereof. The financials have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis and fairly present the financial
condition of THERMA as of the date of November 15,1996.ince November
15, 1996 there has been no material adverse change in the business
or financial condition on the operations of THERMA, or to the best
knowledge of THERMA, any occurrence circumstance, or combination
thereof which reasonably could be expected to result in such a
material adverse change in the future.
(e) As of the date hereof, there are no material liabilities, absolute or
contingent, of THERMA that were not shown or reserved against on the
balance sheet included in the financial statement or described in the
notes thereto.
(f) Exchange of consideration between THERMA and BP. Subject to the terms
and conditions hereof, Therma agrees to transfer to BP on the Closing
Date (as hereinafter defined) and BP agrees to accept from
THERMA on the Closing Date, all of its assets, including its
corporation
name, subject to liabilities, as more fully set forth and described in
Exhibit A. All of the outstanding shares of the THERMA shall be
cancelled. BP will issue though its transfer agent, Interstate
Transfer Company, Inc. 4,800,000 shares of BP Common Stock
(g) On Closing Date there will be no outs1anding subscriptions, options,
warrants, contracts, calls, puts, kind or nature to purchase or acquire
any securities of THERMA common stock; and THERMA has no obligation
of any kind to issue any additional securities.
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(h) For each of the assets listed in Exhibit A, THERMA has full legal
title to all such assets, free and clear of any liens, encumbrances,
security interests, pledges, charges, claim, voting trusts,
restrictions on transfer and any rights or interests therein,
direct, direct or contingent, in favor of any parties, except as
otherwise disclosed herein. Therma warrants that it has full and
unrestricted right, power and authority to sell, assign, transfer
and deliver the same or to cause the same to be transferred to BP
in accordance with this AGREEMENT
(i) THERMA conducts all phases of its business in substantial compliance
with all leases, any restrictions of record and all zoning, fire,
safety, building, pollution, environmental control, food, drug and
health codes and other laws, ordinances and requirements of every
governmental authority applicable to the ownership, operation or
other use of such assets and properties.
(j) THERMA has filed or caused to be filed with the appropriate federal,
state, county, local and foreign governmental agencies or
instrumentality, all tax returns and tax reports required to be
filed, and all taxed assessments, fees and other governmental
charges have been fully paid when due, except as may be reserved
for in the November 15, 1996 statement. There is no pending or,
to the best knowledge of THERMA, threatened federal, state or
local tax audit of THERMA; there is no agreement with any federal,
state or local taxing authority that may affect the subsequent tax
liabilities of THERMA.
(k) No Conflict or Default. Neither the execution or the delivery of this
agreement, nor compliance with the terms and provisions hereof,
including without limitation the consummation of the transactions
contemplated hereby, will violate any statute, regulation or ordinance
of any governmental authority, of conflict with or result in the
breach of any term, condition or provision of the Certificate of
Incorporation or by-laws of THERMA, or any agreement, deed, contract,
mortgage, indenture, writ, order, decree, legal obligation or
instrument to which THERMA is party or by which it or any of its
respective assets or properties are or may be bound, or constitute
a default thereunder, or result in the creation or imposition of
any lien, charge, encumbrance or restriction of any nature
whatsoever with respect to the properties or assets of THERMA, or
give to other any interests or rights, including rights of
termination, acceleration or cancellation in or with respect to
any of the properties, assets, contracts or business of THERMA.
(l) No dividend shall be declared or paid or other distribution
Neither in cash, stock, property or any combination thereof) or
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payment declared or made in respect of THERMA common stock, nor
shall THERMA purchase, acquire or redeem or split, combine or
reclassify any shares of its capital stock.
(m) No change shall be made in the number of shares of authorized or
issued THERMA common stock, nor. shall any option, warrant call,
right, commitment or agreement of any character be granted or
made by THERMA relating to its authorized or issued common stock;
nor shall THERMA issue, grant or sell any securities or obligations
convertible into exchangeable for shares of THERMA common stock.
(n) Representations True: Covenants Performed. The representations
and warranties of the THERMA shall be true and correct, as of the
Closing Date, with the same force and effect as though such
representations and warranties had been made on the Closing Date,
and all terms and conditions and covenants of this Agreement to
be complied with and performed by THERMA on or before the Closing
Date shall have been complied with and performed.
(o) No Material Adverse Change. The business and properties of THERMA
shall not have been adversely affected in any material way as a
result of any fire, accident, or other casualty (whether or not
covered by insurance) any labor disturbance, or act of God, public
authority, or the public enemy, which would interfere in any
substantial manner with the operations of THERMA. There shall
have been no changes in the business or property or THERMA
since the date hereof, or in the financial conditions of THERMA
since November 15, 1996; which would have a material adverse
effect on its business.
(p) No Litigation Threatened. No inquiry shall have been received nor
any investigation, action or proceeding shall have been instituted
or threatened by any governmental agency regarding the transaction
contemplated hereby.
(q) Brokerage. THERMA have not been represented with respect to
transaction by a broker, finder or similar person and no compensation
of any kind is due for such services.
(r) On Closing Day, THERMA shall deliver a copy of AGREEMENT signed
by the President of THERMA and dated.
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4. Investment Representations. THERMA and on behalf of its shareholders
who may acquire BP's shares hereunder acknowledges, represents, warrants and
agrees that:
(a) The Shareholder is acquiring the BP common stock pursuant to this
Agreement for his own account for investment purposes only and has
no present intention to sell, distribute or otherwise dispose of
the shares acquired hereunder.
(b) The Shareholder is executing this Agreement and all other documents
in connection with the receipt of BP common stock as an inducement
to BP to acquire THERMA assets and BP may rely on such documents and
information contained therein to determine the qualifications of
THERMA to acquire the BP common stock.
(c) The Shareholder acknowledges being informed that BP'S common stock
issued hereunder is not registered under the Act or any state
securities law and it must be held indefinitely unless it is
subsequently registered under the applicable federal and state law
or he furnishes to BP an opinion of counsel that registration is
not required under the ACT and such information will be set forth
in the restrictive legend on the face of the certificate(s) to be
issued to THERMA.
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5. Closing.
The Closing shall take place on or about November 15, 1996, or as may
otherwise be mutually agreeable to parties. At the Closing, BP will cause
to be issued and delivered to the THERMA, a stock certificate in the
amount of 4,800,000 common shares of BP. Therma will deliver to BP a
fully executed XXXX OF SALE with a complete schedule of, all its assets
acquired hereunder.
(a) Nonassignability. Neither this Agreement nor any rights and obligations
hereunder may be assigned by any party without the written consent of the
other.
(b) Entire Agreement. This instrument together with the attached Exhibits
contains the entire Agreement among the parties with respect to the
purchase and sale of the securities described herein and other transactions
contemplated hereby.
(c) Amendment. This Agreement may be amended or modified only by a
writing signed by the party or parties to be charged with such amendment or
modification.
(d) Access. Prior to the Closing, THERMA shall afford to the Officers,
Directors Attorneys, Accountants and other authorized representative(s)
of BP free full access to the premises, books, and records of THERMA in
order that BP may take such investigation as it may desire of the affairs
of THERMA. Prior to Closing, BP shall afford the Officers, Directors
Attorneys, Accountants and other authorized representative(s) of THERMA
free and full access to the premises, books and records of BP so that
THERMA may take such investigation as it may desire of the affairs of BP.
(e) Materiality: Survival. All covenants, agreements, representations
and warranties made herein and in any, certificate delivered at the
Closing or pursuant thereto, shall be deemed to be material and have
been relied upon by the parties hereto, notwithstanding any
investigation heretofore or hereafter made or omitted by such other
party or in its behalf and shall survive the Closing hereunder.
(f) Notices. All notices and other communications hereunder shall be in
writing and shall be hand delivered or mailed first class postage prepaid,
to any party at the address set forth ,in the first paragraph of this
Agreement.
(g) Binding on Successors. All of the terms and conditions of this
Agreement shall be binding upon the Successors and inure to the benefit
of the parties hereto and their respective heir, successors, assigns and
legal representatives.
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(h) Severability. The unenforceability or invalidity of any provision
of this Agreement shall not affect the enforceability or validity of the
balance of the Agreement.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware and the disputes arising
hereunder shall be submitted to and settled by arbitration in accordance
with the rules of the American Arbitration Association.
(j) IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first written above.
BP BASEBALL PROPERTIES, INC.
Attest:
-------------------------- By: s/s Xxxxxx X. Xxxxxxxx
----------------------
-------------------------- Xxxxxx X. Xxxxxxxx, President
Secretary
THERMA
Attest: THERMAFREEZE, INC.
s/s Xxxx Xxxxx By: s/s Xxxxxx X. Xxxxxx
-------------------------- --------------------------
XXXXXX XXXXX Xxxxxx Xxxxxx, President
--------------------------
XXXXXXXX
By: s/s Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx, an Individual
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