Execution Copy -- October 28, 2003
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STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT, dated as of October 28, 2003 (this
"Agreement"), by and among Xxxxx Xxxxxxx, a individual having an address at 0000
00xx Xxxxxx Xxxxxxx, Xxxxxxx X0X 0X0 ("Seller"), and Olympus Investment
Corporation a company organized under the laws of the Republic of China, having
an office and address at 00X, Xx. 000, Xxx 0, Xx Xxxxx X. Xx., Xxxxxx, Xxxxxx
ROC ("Purchaser"), and Parallax Entertainment, Inc., a company incorporated
under the laws of the State of Texas, having an office and address at 0000 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0 ("Company").
W I T N E S S E T H
WHEREAS, Seller desires to sell to Purchaser 78,400 shares of the
Company's common stock, $0.01 par value per share (the "Common Stock"), (the
"Shares"), representing approximately 51% of the Company's issued and
outstanding shares of the Common Stock of the Company, on the terms and
condition set forth in this Stock Purchase Agreement ("Agreement"), and
WHEREAS, Purchaser desires to buy the Shares for $255,000 (the
"Purchase Price") on the terms and conditions set forth herein, and
WHEREAS, the parties hereto and Securities Transfer Corporation, a
Texas corporation ("Escrowee"), have entered into an agreement (the "Escrow
Agreement") providing for the payment into escrow of $50,000 (the "Escrow
Fund"),
WHEREAS, the Company joins in the execution of this Agreement for the
purpose of evidencing its consent to the consummation of the foregoing
transactions and for the purpose of making certain representations and
warranties to and covenants and agreements with the Purchaser.
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows.
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
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1.1 Sale of the Shares. Upon the execution of this Agreement, subject
to the terms and conditions herein set forth, on the basis of the
representations, warranties and agreements herein contained, Seller shall
deliver the Shares to Purchaser who shall purchase the Shares from the Seller.
1.2 Instruments of Conveyance and Transfer. At the Closing, Seller
shall deliver a certificate or certificates representing the Shares to
Purchaser, in form and substance satisfactory to Purchaser ("Certificates"), as
shall be effective to vest in Purchaser all right, title and interest in and to
all of the Shares.
1.3 Consideration and Payment for the Shares. In consideration for the
Shares, Purchaser shall pay to the Seller the purchase price of Two Hundred
Fifty-five Thousand ($255,000) Dollars in U.S. currency ("Purchase Price"). The
Purchase Price shall be payable only upon Closing (as set forth in Article 8
hereof).
ARTICLE 2
APPOINTMENT OF THE DIRECTORS AND OFFICERS
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2.1 At the Closing, the Company will take all steps required to appoint
nominees of Purchaser as directors and officers of the Company.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
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The Seller represents and warrants to the Purchaser now and as of the
Closing, the following:
3.1 Transfer of Title. Seller shall transfer title in and to the Shares
to the Purchaser free and clear of all liens, security interests, pledges,
encumbrances, charges, restrictions, demands and claims, of any kind or nature
whatsoever, whether direct or indirect or contingent.
(a) Due Execution This Agreement has been duly executed and
delivered by the Seller.
(b) Valid Agreement This Agreement constitutes, and upon
execution and delivery thereof by the Seller, will constitute, a valid and
binding agreement of the Seller enforceable against the Seller in accordance
with its respective terms.
(c) Authorization. The execution, delivery and performance by
the Seller of this Agreement and the delivery by the Seller of the Shares have
been duly and validly authorized and no further consent or authorization of the
Seller or an other is required.
(d) Seller's Title to Shares; No Liens or Preemptive Rights;
Valid Issuance. Seller has and at the Closing will have full and valid title,
possession and control of the Shares; there is and will be no existing
impediment or encumbrance to the sale and transfer of such Shares to the
Purchaser; and on delivery to the Purchaser of the Shares, all of the Shares
will be free and clear of all taxes, liens, encumbrances, charges or assessments
of any kind and shall not be subject to preemptive rights, tag-along rights, or
similar rights of any of the stockholders of the Company. Such Shares are and
will be legally and validly issued in material compliance with all applicable
U.S. federal and state securities laws, and will be fully paid and
non-assessable shares of the Company's common stock; and the Shares have all
been issued under duly authorized resolutions of the Board of Directors of the
Company. At the Closing, Seller shall deliver to the Purchaser certificates
representing the Shares subject to no liens, security interests, pledges,
encumbrances, charges, restrictions, demands or claims in any other party
whatsoever.
3.2 No Governmental Action Required. The execution and delivery by the
Seller of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental official,
including but not limited to the Securities and Exchange Commission
("Commission") and the National Association of Securities Dealers ("NASD"),
except such actions or filings that have been undertaken or made prior to the
date hereof and that will be in full force and effect (or as to which all
applicable waiting periods have expired) on and as of the date hereof or which
are not required to be filed on or prior to the date of Closing.
3.3 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Seller of this Agreement does not and will not
and, the sale by the Seller of the Shares does not and will not contravene or
constitute a default under or violation of (i) any provision of applicable law
or regulation, (ii) the articles of incorporation or by-laws of the Seller, or
(iii) any agreement, judgment, injunction, order, decree or other instrument
binding upon the Seller or any its assets, or result in the creation or
imposition of any lien on any asset of the Seller. The Seller is in compliance
with and conforms to all statutes, laws, ordinances, rules, regulations, orders,
restrictions and all other legal requirements of any domestic or foreign
government or any instrumentality thereof having jurisdiction over the conduct
of their businesses or the ownership of their properties.
3.4 Due Diligence Materials. The information heretofore furnished by
the Seller to the Purchaser for purposes of or in connection with this Agreement
or any transaction contemplated hereby does not, and all such information
hereafter furnished by the Seller to the Purchaser will not (in each case taken
together and on the date as of which such information is furnished), contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they are made, not misleading.
3.5 Not a Voting Trust: No Proxies. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to the Shares. Except as
provided in this Agreement, the Seller is not a party to any agreement which
offers or grants to any person the right to purchase or acquire any of the
Shares. There is no applicable local, state or federal law, rule, regulation, or
decree which would, as a result of the sale contemplated by this Agreement,
impair, restrict or delay any voting rights with respect to the Shares.
3.6 Survival of Representations. The representations and warranties
herein by the Seller will be true and correct in all material respects on and as
of the Closing with the same force and effect as though said representations and
warranties had been made on and as of the Closing and will, except, provided
herein, survive the Closing.
3.7 Adoption of Company's Representations. The Seller adopts and
remakes as his own each and every representation made by the Company in Article
4 below.
3.8 No Solicitation. No form of general solicitation or general
advertising was used by the Seller or, to the best of its actual knowledge, any
other person acting on behalf of the Seller, in connection with the offer and
sale of the Shares. Neither the Seller, nor, to its knowledge, any person acting
on behalf of the Seller, have, either directly or indirectly, sold or offered
for sale to any person (other than the Purchaser) any of the Shares, and the
Seller represent that they will not, nor will any person authorized to act on
its behalf (except that the Seller makes no representation as to the Purchaser)
sell or offer for sale any such security to, or solicit any offers to buy any
such security from, or otherwise approach or negotiate in respect thereof with,
any person or persons so as thereby to cause the issuance or sale of any of the
Shares to be in violation of any of the provisions of Section 5 of the
Securities Act of 1933, as amended or any other provision of federal or state
law.
..
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company represents and warrants to the Purchaser now and at the
Closing, the following:
4.1 Due Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas (a)
with full power and authority to own, lease, use, and operate its properties and
to carry on its business as and where now owned, leased, used, operated and
conducted. The Company has no subsidiaries. The Company is duly qualified to
conduct business as a foreign corporation and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes such
qualification necessary, and (b) all actions taken by the current directors and
stockholders of the Company have been valid and in accordance with the laws of
the State of Texas.
4.2 (a) Company Authority. The Company has all requisite corporate
power and authority to enter into and perform this Agreement.
(b) Due Authorization. The execution, delivery and performance
by the Company of this Agreement has been duly and validly authorized and no
further consent or authorization of the Company, its Board of Directors or its
stockholders is required.
(c) Valid Execution. This Agreement has been duly executed and
delivered by the Company.
(d) Binding Agreement. This Agreement constitutes, and upon
execution and delivery thereof by the Company, will constitute, a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms.
(e) No Violation of Corporate Documents or Agreements. The
execution and delivery of this Agreement by the Company and the performance by
the Company of its obligations hereunder will not cause, constitute, or conflict
with or result in (i) any breach or violation or any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or instrument
to which the Company or its stockholders are a party, or by which they may be
bound, nor will any consents or authorizations of any party other than those
hereto be required, (ii) an event that would cause the Company to be liable to
any party, or (iii) an event that would result in the creation or imposition or
any lien, charge or encumbrance on any asset of the Company or on the securities
of the Company to be acquired by the Purchaser.
4.3 Authorized Capital, No Preemptive Rights, No Liens; Anti-Dilution.
As of the date hereof, the authorized capital of the Company is 200,000,000
shares of Common Stock, $0.01 par value. The issued and outstanding capital
stock of the Company is 153,262 shares of Common Stock. All of the shares of
capital stock are, duly authorized, validly issued, fully paid and
non-assessable. No shares of capital stock of the Company are subject to
preemptive rights or similar rights of the stockholders of the Company or any
liens or encumbrances imposed through the actions or failure to act of the
Company, or otherwise. As of the date hereof and at Closing, (i) there are no
outstanding options, warrants, convertible securities, scrip, rights to
subscribe for, puts, calls, rights of first refusal, tag-along agreements, nor
any other agreements, understandings, claims or other commitments or rights of
any character whatsoever relating to, or securities or rights convertible into
or exchangeable for any shares of capital stock of the Company, or arrangements
by which the Company is or may become bound to issue additional shares of
capital stock of the Company, and (ii) there are no agreements or arrangements
under which the Company is obligated to register the sale of any of its
securities under the Securities Act and (iii) there are no anti-dilution or
price adjustment provisions contained in any security issued by the Company (or
in the Company's articles of incorporation or by-laws or in any agreement
providing rights to security holders) that will be triggered by the transactions
contemplated by this Agreement. The Company has furnished to Purchaser true and
correct copies of the Company's articles of incorporation and by-laws.
4.4 No Governmental Action Required. The execution and delivery by the
Company of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental official,
including but not limited to, the Commission and the NASD, except such actions
or filings that have been undertaken or made prior to the date hereof and that
will be in full force and effect (or as to which all applicable waiting periods
have expired) on and as of the date hereof or which are not required to be filed
on or prior to the Closing.
4.5 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Company of this Agreement does not and will not
contravene or constitute a default under or violation of (i) any provision of
applicable law or regulation, (ii) the Company's articles of incorporation or
bylaws, or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any its assets, or result in the creation
or imposition of any lien on any asset of the Company. The Company is in
compliance with and conforms to all statutes, laws, ordinances, rules,
regulations, orders, restrictions and all other legal requirements of any
domestic or foreign government or any instrumentality thereof having
jurisdiction over the conduct of its businesses or the ownership of its
properties.
4.6 SEC Representations. Through the date hereof, the Company has filed
all forms, reports and documents with the Commission required to be filed by it
("SEC Reports"). The Company has delivered and/or made available to Purchaser
true and complete copies of the required SEC Reports. Such SEC Reports, at the
time filed, complied in all material respects with the requirements of the
federal and state securities laws and the rules and regulations of the
Commission thereunder applicable to such SEC Reports. None of the SEC Reports,
including without limitation, any financial statements or schedules included
therein, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading. In connection with all
shares of common stock and other securities issued by the Company from inception
to date, the Company has complied with the registration requirements of the
federal Securities Act of 1933 and all applicable state blue sky laws or has
relied upon a valid, applicable exemption from those registration requirements.
4.7 Financial Statements. (a) The Purchaser has received a copy of the
unaudited financial statements of the Company for the nine months ended
September 30, 2003 and the related statements of income and retained earnings
for the period then ended (the "Financial Statements") that are included in the
Company's Form 10-QSB for the quarter ended September 30, 2003 and included in
the SEC Reports. The Financial Statements have been prepared in accordance with
generally accepted accounting principles consistently followed by the Company
throughout the periods indicated. Such financial statements fairly present the
financial condition of the Company at the dates indicated and its results of its
operations and cash flows for the periods then ended and, except as indicated
therein, reflect all claims against, debts and liabilities of the Company, fixed
or contingent, and of whatever nature. Since September 30, 2003 (the "Balance
Sheet Date"), there has been no material adverse change in the assets or
liabilities, or in the business or condition, financial or otherwise, or in the
results of operations or prospects, of the Company, whether as a result of any
legislative or regulatory change, revocation of any license or rights to do
business, fire, explosion, accident, casualty, labor trouble, flood, drought,
riot, storm, condemnation, act of God, public force or otherwise and no material
adverse change in the assets or liabilities, or in the business or condition,
financial or otherwise, or in the results of operation or prospects, of the
Company except in the ordinary course of business.
4.8 No Litigation. The Company is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation which its has not disclosed to Purchaser. The Company
is not subject to or in default with respect to any order, writ, injunction, or
decree of any federal, state, local, or foreign court, department, agency, or
instrumentality.
4.9 No Taxes. The Company is not liable for any income, sales,
withholding, real or personal property taxes to any governmental agencies
whatsoever. All United States federal, state, county, municipality local or
foreign income tax returns and all other material tax returns (including foreign
tax returns) which are required to be filed by or on behalf of the Company have
been or will be filed as of the Closing Date and all material taxes due pursuant
to such returns or pursuant to any assessment received by the Company have been
or will be paid as of the Closing Date, except those being disputed in good
faith and for which adequate reserves have been established. The charges,
accruals and reserves on the books of the Company in respect of taxes or other
governmental charges have been established in accordance with GAAP.
4.10 Material Agreements (a) The Company is not currently carrying on
any business and is not a party to any contract, agreement, lease or order which
would subject it to any performance or business obligations or restrictions in
the future after the Closing of the transactions contemplated by this Agreement.
(b) The Company has no employment contracts or agreements with
any of its officers, directors, or with any consultants, employees or other such
parties.
(c) The Company has no stockholder contracts or agreements.
(d) The Company is not in default under any contract or any
other document.
(e) The Company has no written or oral contracts with any
third party except with its transfer agent, Securities Transfer Corporation.
(f) The Company has no outstanding powers of attorney and no
obligations concerning the performance by the Seller of this Agreement.
(g) The Company has all material Permits ("Permits" means all
licenses, franchises, grants, authorizations, permits, easements, variances,
exemptions, consents, certificates, orders and approvals necessary to own, lease
and operate the properties, of, and to carry on the business of the Company);
(ii) all such Permits are in full force and effect, and the Company has
fulfilled and performed all material obligations with respect to such Permits;
(iii) no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination by the issuer thereof or which results in any
other material impairment of the rights of the holder of any such Permit, and
(iv) the Company has no reason to believe that any governmental body or agency
is considering limiting, suspending or revoking any such Permit.
(h) Neither the Company nor, to the Company's knowledge, any
employee or agent of the Company has made any payments of funds of the Company,
or received or retained any funds, in each case in violation of any law, rule or
regulation or of a character required to be disclosed by the Company in any of
the SEC Reports.
(i) There are no outstanding judgments or Uniform Commercial
Code financing instruments or UCC Securities Interests filed against the Company
or any of its properties.
(j) The Company has no debt, loan, or obligations of any kind,
to any of its directors, officers, stockholders, or employees, which will not be
satisfied at the Closing, except $10,719 owed to the Seller.
(k) The Company does not have and will not have any assets at
the time of closing other than as disclosed in the Financial Statements. The
Company does not own any real estate or any interests in real estate. The
Company does not own any patents, copyrights, or trademarks. The Company does
not license the intellectual property of others nor owe fees or royalties on the
same.
4.11 No Liabilities. There are no liabilities of the Company of any
kind whatsoever which has not been disclosed to Purchaser, whether accrued,
contingent, absolute, determined, determinable or otherwise, and there is no
existing condition, situation or set of circumstances which could reasonably be
expected to result in such a liability. The Company does not have any debt,
liability, or obligation of any nature, whether accrued, absolute, contingent,
or otherwise, and whether due or to become due, that is not reflected on the
Company's Financial Statements.
4.12 OTC Listing. The Company is currently listed on the OTC Electronic
Bulletin Board under the trading symbol "PLXE". The Company is not in default
with respect to any listing requirements of the NASD.
4.13 Compliance with Law. To the best of its knowledge, the Company has
complied with, and is not in violation of any provision of laws or regulations
of federal, state or local government authorities and agencies. There are no
pending or threatened proceedings against the Company by any federal, state or
local government, or any department, board, agency or other body thereof.
4.14 Corporate Documents Effective. The articles of incorporation, as
amended, and the bylaws of the Company, as provided to Purchaser are, or will at
Closing be, in full force and effect and all actions of the Board of Directors
or stockholders required to accomplish same have, or will at Closing have been,
taken.
4.15 No Stockholder Approval Required. The acquisition of the Shares by
Purchaser from Seller does not require the approval of the stockholders of the
Company under the Texas General Corporate Law ("TGCL"), the Company's articles
of incorporation or bylaws, or any other requirement of law or, if stockholder
approval is required it has or will, prior to the Closing, be properly obtained
in accordance with the requirements of the Company's articles of incorporation
and by-laws and the TGCL.
4.16 No Dissenters' Rights. The acquisition of the Shares by Purchaser
from Seller will not give rise to any dissenting stockholders' rights under the
TGCL, the Company's articles of incorporation or bylaws, or otherwise.
4.17 Not Subject to Voting Trust. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to such Shares. The Company
is not a party to any agreement that offers or grants to any person the right to
purchase or acquire any of the securities to be issued pursuant to this
Agreement. There is no applicable local, state or federal law, rule, regulation,
or decree which would, as a result of the transfer of the Shares to Purchaser,
impair, restrict or delay any voting rights with respect to the Shares.
4.18 Prior Offerings. All issuances by the Company of shares of common
stock in past transactions have been legally and validly effected, and all of
such shares of common stock are fully paid and non-assessable. All of the
offerings of the Company's common stock were conducted in strict accordance with
the requirements of Regulation D, Rules 504 and 506, as applicable, in full
compliance with the requirements of the Securities Act of 1933, the Securities
Exchange Act of 1934 and the Texas Securities Act as applicable, and in full
compliance with and according to the requirements of the TGCL and the Company's
articles of incorporation and bylaws.
4.19 True Representations. The information heretofore furnished by the
Company to the Purchaser for purposes of or in connection with this Agreement or
any transaction contemplated hereby does not, and all such information hereafter
furnished by the Company to the Purchaser will not (in each case taken together
and on the date as of which such information is furnished), contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein, in the light of the circumstances
under which they are made, not misleading.
4.20 Survival. The representations and warranties herein by the Company
will be true and correct in all material respects on and as of the Closing with
the same force and effect as though said representations and warranties had been
made on and as of the Closing Time and will, except, as otherwise provided
herein, survive the Closing for a period of three (3) years.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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Unless specifically stated otherwise, Purchaser represents and warrants
that the following are true and correct as of the date hereof and will be true
and correct through the Closing Date as if made on that date:
5.1 Agreement's Validity. This Agreement has been duly executed and
delivered by Purchaser and constitutes legal, valid and binding obligations of
Purchaser, enforceable against Purchaser in accordance with its respective
terms, except as may be limited by applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally or the availability of equitable
remedies.
5.2 Investment Intent. Purchaser is acquiring the Shares for its own
account for investment and not with a view to, or for sale or other disposition
in connection with, any distribution of all or any part thereof, except (i) in
an offering covered by a registration statement filed with the Securities and
Exchange Commission under the Securities Act covering the Shares, or (ii)
pursuant to an applicable exemption under the Securities Act.
5.3 Restricted Securities. Purchaser understands that the Shares have
not been registered pursuant to the Securities Act or any applicable state
securities laws, that the Shares will be characterized as "restricted
securities" under federal securities laws, and that under such laws and
applicable regulations the Shares cannot be sold or otherwise disposed of
without registration under the Securities Act or an exemption therefrom. In this
connection, Purchaser represents that it is familiar with Rule 144 promulgated
under the Securities Act, as currently in effect, and understands the resale
limitations imposed thereby and by the Securities Act. Stop transfer
instructions may be issued to the transfer agent for securities of the Company
(or a notation may be made in the appropriate records of the Company) in
connection with the Shares.
5.4 Legend. It is agreed and understood by Purchaser that the
certificates representing the Shares shall each conspicuously set forth on the
face or back thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT TO
AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
5.5 Disclosure of Information. Purchaser acknowledges that it has been
furnished with information regarding the Company and its business, assets,
results of operations, and financial condition to allow Purchaser to make an
informed decision regarding an investment in the Shares. Purchaser represents
that it has had an opportunity to ask questions of and receive answers from the
Company regarding the Company and its business, assets, results of operation,
and financial condition.
ARTICLE 6
INDEMNIFICATION
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6.1 Seller hereby agrees to, indemnify and hold harmless the Purchaser
and the Company (which includes, for purposes of this Article, Purchaser's and
the Company's officers and directors, and stockholders) against any losses,
joint or several, to which Purchaser may become subject under the federal
securities laws, any state or other federal law, statutory or common law, or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise by
reason of the inaccuracy of any warranty or representation contained in this
Agreement, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and Seller will in addition reimburse Purchaser and the Company for
any legal or any other expenses reasonably incurred by Purchaser in connection
with investigating or defending any such loss, claim, liability, action or
proceeding. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of Purchaser and shall survive the
Closing for a period of three (3) year. As used herein, "Losses" means any loss,
claim, demand, damage, award, liabilities, suits, penalties, forfeitures, cost
or expense (including, without limitation, reasonable attorneys', consultant and
other professional fees and disbursements of every kind, nature and
description).
ARTICLE 7
COVENANTS
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7.1 From the date of this Agreement to Closing, the Seller and the
Company covenant as follows.
(a) Company will to the best of its ability preserve intact
the current status of the Company and the trading capacity of the Company as a
NASD Bulletin Board company.
(b) The Seller will furnish Purchaser with whatever corporate
records and documents are available, such as articles of incorporation and
bylaws.
(c) The Company will not enter into any contract, written or
oral, or business transaction, merger or business combination, or incur any
debts, loan, or obligations without the express written consent of Purchaser or
enter into any agreements with its officers, directors, or stockholders.
(d) The Company will not amend or change its articles of
incorporation or Bylaws, or issue any further shares in the common stock of the
Company without the express written consent of Purchaser.
(e) The Company will not issue any stock options, warrants or
other rights or interest in the Shares or to its shares of common stock.
(f) The Seller will not encumber or mortgage any right or
interest in the Shares, and will not transfer any rights to the Shares to any
third party whatsoever.
(g) The Company will not declare any dividend in cash or
stock, or any other benefit to its stockholders.
(h) The Company will not institute any bonus, benefit, profit
sharing, stock option, pension retirement plan or similar arrangement.
(i) The Seller will obtain and submit to the Purchaser
resignation of current officers and directors.
(j) The Company will arrange for the Company's current bank
account to be closed and the delivery of all bank account statements and records
pertaining to this account.
ARTICLE 8
CLOSING AND DELIVERY OF DOCUMENTS
---------------------------------
8.1 Closing. The Closing shall be held on or before October 31, 2003
(the "Closing Date"). The Closing shall occur as a single integrated
transaction, as follows.
(a) Delivery by Seller
(i) Seller shall deliver to the Purchaser such
instruments, documents and certificates as are
required to be delivered by Seller or its
representatives pursuant to the provisions of this
Agreement.
(ii) Seller shall deliver to Purchaser (i) the
Certificates executed by the Seller and the Company,
dated the Closing Date, certifying that the
representations and warranties of the Seller and the
Company contained in and required by this Agreement
are true in all respects and (ii) other certificates
and opinions as directed by Purchaser, as follows:
1) Current Certificate of Good Standing of the
Company issued by the Texas Comptroller of
Public Accounts.
2) Letter from Seller and Xxxx Xxxxxx that
there exist Consulting Agreements or Stock
Option Agreements with each person to whom
the Company issued "free" stock registered
under the Company's SEC Form S-8
Registration Statement.
(b) Delivery by Purchaser
(i) The Purchaser shall pay to the Seller an aggregate of
$255,000 consisting of $50,000 held in escrow by
Securities Transfer Corporation and the balance of
$205,000 in form of a cashier's check made payable to
the Seller or by wire transfer as instructed by
Seller; provided however in the event the Seller has
not delivered to Purchaser at Closing a certified
copy of a release and full satisfaction of that
certain judgment dated April 29,2003, in the case
styled Pre-Employment Screening, Inc., et al, v
Parallax Entertainment, Inc., Cause Number
03AC-002545 Z CV, Division 39- Tuesday, in the
Circuit Court of the County of St. Louis, State of
Missouri, $15,000 of the Purchase Price shall be
withheld and not delivered at the Closing, but shall
be delivered to Seller post- Closing upon delivery by
Seller to Purchaser of such release and full
satisfaction of judgment.
(ii) A certificate executed by Purchaser dated the Closing
Date, certifying that the representations and
warranties of Purchaser contained in this Agreement
are then true in all respects.
ARTICLE 9
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
9.1 Waiver. Any term, provision, covenant, representation, warranty or
condition of this Agreement may be waived, but only by a written instrument
signed by the party entitled to the benefits thereof. The failure or delay of
any party at any time or times to require performance of any provision hereof or
to exercise its rights with respect to any provision hereof shall in no manner
operate as a waiver of or affect such party's right at a later time to enforce
the same. No waiver by any party of any condition, or of the breach of any term,
provision, covenant, representation or warranty contained in this Agreement, in
any one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach or waiver of any other
condition of the breach of any other term, provision, covenant, representation
or warranty. No modification or amendment of this Agreement shall be valid and
binding unless it be in writing and signed by all parties hereto.
9.2 Termination by Purchaser. Notwithstanding anything to the contrary
herein, Purchaser shall have the right, in its sole and absolute discretion, at
any time prior to its payment of the Purchase Price, to terminate this
Agreement, in which event, this Agreement shall be terminated and no party shall
have any further obligation to any other party. In such event, the
non-refundable deposit that Purchaser has paid shall be forfeited to the benefit
of Seller.
ARTICLE 10
MISCELLANEOUS
-------------
10.1 Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understanding related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statement, certificates, or other documents delivered pursuant hereto or
in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not set forth.
10.2 Notices. Any notice or communications hereunder must be in writing
and given by depositing same in the United States mail addressed to the party to
be notified, postage prepaid and registered or certified mail with return
receipt requested or by delivering same in person. Such notices shall be deemed
to have been received on the date on which it is hand delivered or on the third
business day following the date on which it is to be mailed. For purpose of
giving notice, the addresses of the parties shall be:
If to Seller: Xxxxx Xxxxxxx
------------ 0000 00xx Xxxxxx
Xxxxxxx, XX X0X 0X0
Fax No. 000-000-0000
If to Purchaser to:
------------------
Olympus Investments Corporation
11 F, No. 249, Xxx 0
Xx Xxxxx X. Xx.
Xxxxxx, Xxxxxx X.X.X.
Fax No.
If to Company to:
----------------
Parrallax Entertainment, Inc
0000 00xx Xxxxxx
Xxxxxxx, XX X0X 0X0
Fax No. 000-000-0000
10.3 Governing Law. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of Texas (without regard to principles of conflicts of law). Each of the
parties hereto agrees to submit to the exclusive jurisdiction of any federal or
state court within the County of Dallas, with respect to any claim or cause of
action arising under or relating to this Agreement. The parties agree that any
service of process to be made hereunder may be made by certified mail, return
receipt requested, addressed to the party at the address appearing in Section
10.2, together with a copy to be delivered to such party's attorneys via
telecopier (if provided in Section 10.2). Such service shall be deemed to be
completed when mailed and sent and received by telecopier. Seller and Purchaser
each waives any objection based on forum non conveniens. Nothing in this
paragraph shall affect the right of Seller or Purchaser to serve legal process
in any other manner permitted by law.
10.4 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.5 Waivers and Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, canceled, renewed, or
extended, and the terms hereof may be waived, only by a written instrument
signed by authorized representatives of the parties or, in the case of a waiver,
by an authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede, cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege shall hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party of
any such right, power or privilege, or any single or partial exercise of any
such right, power of privilege, preclude any further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity. The rights and remedies of any
party based upon, arising out of or otherwise in respect of any inaccuracy in or
breach of any representation, warranty, covenant or agreement contained in this
Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such inaccuracy
or breach is based may also be the subject of any other representation,
warranty, covenant or agreement contained in this Agreement (or in any other
agreement between the parties) as to which there is no inaccuracy or breach.
10.6 Binding Effect; No Assignment, No Third-Party Rights. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto or by
operation of law.
10.7 Further Assurances. Each party shall, at the request of the other
party, at any time and from time to time following the Closing promptly execute
and deliver, or cause to be executed and delivered, to such requesting party all
such further instruments and take all such further action as may be reasonably
necessary or appropriate to carry out the provisions and intents of this
Agreement and of the instruments delivered pursuant to this Agreement.
10.8 Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of the Agreement, or the application of such provision or portion of
such provision is held invalid or unenforceable to person or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and such provision or portion of any provision as shall have
been held invalid or unenforceable shall be deemed limited or modified to the
extent necessary to make it valid and enforceable, in no event shall this
Agreement be rendered void or unenforceable.
10.9 Exhibits and Schedules. All exhibits annexed hereto, and all
schedules referred to herein, are hereby incorporated in and made a part of this
Agreement as if set forth herein. Any matter disclosed on any schedule referred
to herein shall be deemed also to have been disclosed on any other applicable
schedule referred to herein.
10.10 Captions. All section titles or captions contained in this
Agreement or in any schedule or exhibit annexed hereto or referred to herein,
and the table of contents to this Agreement, are for convenience only, shall not
be deemed a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement. All references herein to sections shall be
deemed references to such parts of this Agreement, unless the context shall
otherwise require.
10.11 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Closing occurs, each party hereto shall pay its
own expenses incidental to the preparation of this Agreement, the carrying out
of the provisions hereof and the consummation of the transactions contemplated.
ARTICLE 11
PAYMENT OF DEBT OWED TO SELLER
------------------------------
11.1 As set forth above, the Company, as of the Closing, owes Seller
$10,719. Within 60 days of Closing, Purchaser shall cause the Company to issue
and Seller shall accept 30,000 shares of common stock (Seller's Shares) in full
payment of the said $10,719 debt. The Company shall retain the certificate for
the Seller's Shares for the Term of the Option, as set forth in Section 11.2
below.
11.2 Seller hereby grants to Purchaser the right and option to purchase
all or any part of the Seller's Shares at an exercise price of $1.00 per share.
Such option (the "Option") shall be exercisable at any time and from time to
time during a period of one year following the Closing (the "Term"), and shall
terminate at the end of the Term.
11.3 The Purchaser may exercise the Option in each instance by notice
to the Seller (a "Notice of Exercise") delivered in the manner set forth in
Section 10.2
Such notice shall be deemed given when delivered by hand, five (5) business days
after mailing by certified mail, and three (3) business days after sending by
facsimile transmission, and shall contain the following information and
remittance:
Number of Seller's Shares being purchased.
Total purchase price.
Certified or bank check for the full exercise price, if notice is by
hand delivery or certified mail, or wire transfer confirmation of
remittance of exercise price to Seller's bank.
11.4.1 In the event, at any time, that the number of Seller's Shares
then subject to the Option shall be increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Company or of another corporation, through reorganization, merger,
consolidation, liquidation, recapitalization, reclassification, stock split-up
or combination of shares, appropriate adjustment (in the number and kind of
shares or resulting securities as to which this Option then applied) shall be
made to the end that the number of shares or other securities then subject to
the Option shall then be considered "Seller's Shares" and the total exercise
price therefor shall remain unchanged. (For example, if the total 30,000
Seller's Shares were split one-for-two, such that the 30,000 Seller's Shares
were changed to 15,000 shares of common stock, the resulting 15,000 shares would
then be covered by this option at an exercise price of $2.00 per share.)
11.4.2 If after one (1) year from the date hereof, there shall not have
been any change in the number or price per share for the Seller's Shares
resulting from the provisions of Paragraph 11.4.1 above, the balance of the
Seller's Shares then subject to the Option and not purchased by the Purchaser or
its assignee, shall be delivered to Seller, limited nevertheless to a maximum of
30,000 shares.
11.4.3 During the Term and while the Seller's Shares are subject to the
Option, Seller grants to Purchaser a full and irrevocable proxy (the "Proxy") to
vote the Seller's Shares in any and all meetings or consents of shareholders and
in respect of any and all matters or proposals presented to shareholders,
including but not limited to election of directors. The parties agree that this
Proxy is coupled with an interest. Upon the Closing, this section 11.4.3 shall
be deemed for all purposes the Proxy.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first written herein above.
XXXXX XXXXXXX
--------------------------------------
Xxxxx Xxxxxxx
OLYMPUS INVESTMENT CORPORATION
By:
-----------------------------------
PARALLAX ENTERTAINMENT, INC.
By:
-----------------------------------
