SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT is made effective this 31st day of August
1999, by and between ILMI Corporation (formerly "Aspen Capital,
Inc."), a Nevada corporation ("Aspen"), and International Licensing &
Merchandising, Inc., a Nevada corporation ("ILMI").
WHEREAS, Aspen desires to acquire all of the issued and outstanding
shares of common stock of ILMI in exchange for an aggregate of 6,906,572
authorized but unissued restricted shares of the common stock, $.0001 par
value, of Aspen (the "Common Stock") (the "Exchange Offer"); and
WHEREAS, ILMI desires to assist Aspen in a business combination which
will result, if ILMI's shareholders desire to participate, in the shareholders
of ILMI owning approximately 92% of the then issued and outstanding shares of
Aspen's Common Stock, and Aspen holding 100% of the issued and outstanding
shares of ILMI's common stock; and
WHEREAS, the voluntary share exchange contemplated hereby will result in
the ILMI shareholders tendering all of the outstanding common stock of ILMI to
Aspen in exchange solely for the Common Stock and no other consideration,
which the parties hereto intend to treat as a reorganization under I.R.C.
Section 368(a)(1)(B).
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE 1
EXCHANGE OF SECURITIES
1.1 Issuance of Shares. Subject to all of the terms and conditions
of this Agreement, Aspen agrees to offer two shares of Common Stock for each
share of ILMI common stock issued and outstanding, or a total of 6,906,572
shares of Aspen's Common Stock. The Common Stock will be issued directly to
the shareholders of ILMI which accept the Exchange Offer. Schedule 1, which
is attached hereto and incorporated herein by reference, is a complete list of
the shareholders of ILMI which sets forth the number of shares each person
owns in ILMI and the number of shares they will be offered in Aspen.
1.2 Exemption from Registration. The parties hereto intend that the
Common Stock to be issued by Aspen to ILMI shareholders shall be exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Act"), pursuant to Section 4(2) of the Act and the rules and regulations
promulgated thereunder.
1.3 Investment Intent. Prior to the consummation of the Exchange
Offer, the shareholders of ILMI accepting the Exchange Offer shall execute
Letters of Acceptance and such other documents containing, among other things,
representations and warranties relating to investment intent and investor
status, restrictions on transferability and restrictive legends such that the
counsel for both Aspen and ILMI shall be satisfied that the offer and sale of
Aspen shares as contemplated by this Agreement shall be exempt from the
registration requirements of the Act and any applicable state blue sky laws.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF ILMI
Except as disclosed in Schedule 2 which is attached hereto and
incorporated herein by reference, ILMI hereby represents and warrants to Aspen
that:
2.1 Organization. ILMI is a corporation duly organized, validly
existing, and in good standing under the laws of Nevada, has all necessary
corporate powers to own its properties and to carry on its business as now
owned and operated by it, and is duly qualified to do business and is in good
standing in each of the jurisdictions where its business requires
qualification.
2.2 Capital. The authorized capital stock of ILMI consists of
100,000,000 shares of Common Stock, $.0001 par value, of which 3,453,286 are
currently issued and outstanding and 5,000,000 shares of Preferred Xxxxx,
x.0000 par value, of which no shares are currently issued and outstanding.
All of the issued and outstanding shares of ILMI are duly authorized, validly
issued, fully paid, and nonassessable. There are no outstanding
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities, or other agreements or commitments obligating ILMI to issue or to
transfer from treasury any additional shares of its capital stock of any
class.
2.3 Subsidiaries. ILMI does not have any subsidiaries or own any
interest in any other enterprise (whether or not such enterprise is a
corporation) except as disclosed in Schedule 2.
2.4 Directors and Officers. Schedule 2 contains the names and titles
of all directors and officers of ILMI as of the date of this Agreement.
2.5 Financial Statements. ILMI has delivered to Aspen unaudited
balance sheets and statement of operations for the four months ended April 30,
1999 (the "Financial Statements"). The Financial Statements are complete and
correct in all material respects and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated. The Financial Statements accurately set out
and describe the financial condition of the Company as of April 30, 1999.
2.6 Absence of Changes. Since April 30, 1999, except for changes in
the ordinary course of business which have not in the aggregate been
materially adverse, to the best of ILMI's knowledge, ILMI has conducted its
business only in the ordinary course and has not experienced or suffered any
material adverse change in the condition (financial or otherwise), results of
operations, properties, business or prospects of ILMI or waived or surrendered
any claim or right of material value.
2.7 Absence of Undisclosed Liabilities. Neither ILMI nor any of its
properties or assets are subject to any material liabilities or obligations of
any nature, whether absolute, accrued, contingent or otherwise and whether due
or to become due, that are not reflected in the financial statements presented
to Aspen or have otherwise been disclosed to Aspen.
2.8 Tax Returns. Within the times and in the manner prescribed by
law, ILMI has filed all federal, state and local tax returns required by law,
or has filed extensions which have not yet expired, and has paid all taxes,
assessments and penalties due and payable.
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2.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, Aspen
and/or its attorneys shall have the opportunity to meet with accountants and
attorneys to discuss the financial condition of ILMI. ILMI shall make
available to Aspen and/or its attorneys all books and records of ILMI.
2.10 Trade Names and Rights. ILMI does not use any trademark,
service xxxx, trade name, or copyright in its business, or own any trademarks,
trademark registrations or applications, trade names, service marks,
copyrights, copyright registrations or applications.
2.11 Compliance with Laws. To the best of ILMI's knowledge, ILMI has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws and regulations (including, without limitation, any applicable
building, zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business, except for matters which would
not have a material affect on ILMI or its properties.
2.12 Litigation. ILMI is not a party to any suit, action,
arbitration or legal, administrative or other proceeding, or governmental
investigation pending or, to the best knowledge of ILMI, threatened against or
affecting ILMI or its business, assets or financial condition, except for
matters which would not have a material affect on ILMI or its properties.
ILMI is not in default with respect to any order, writ, injunction or decree
of any federal, state, local or foreign court, department, agency or
instrumentality applicable to it. ILMI is not engaged in any lawsuit to
recover any material amount of monies due to it.
2.13 Authority. ILMI has full corporate power and authority to enter
into this Agreement. The board of directors of ILMI has taken all action
required to authorize the execution and delivery of this Agreement by or on
behalf of ILMI and the performance of the obligations of ILMI under this
Agreement. No other corporate proceedings on the part of ILMI are necessary
to authorize the execution and delivery of this Agreement by ILMI in the
performance of its obligations under this Agreement. This Agreement is, when
executed and delivered by ILMI, and will be a valid and binding agreement of
ILMI, enforceable against ILMI in accordance with its terms, except as such
enforceability may be limited by general principles of equity, bankruptcy,
insolvency, moratorium and similar laws relating to creditors' rights
generally.
2.14 Ability to Carry Out Obligations. Neither the execution and
delivery of this Agreement, the performance by ILMI of its obligations under
this Agreement, nor the consummation of the transactions contemplated under
this Agreement will to the best of ILMI's knowledge: (a) materially violate
any provision of ILMI's articles of incorporation or bylaws; (b) with or
without the giving of notice or the passage of time, or both, violate, or be
in conflict with, or constitute a material default under, or cause or permit
the termination or the acceleration of the maturity of, any debt, contract,
agreement or obligation of ILMI, or require the payment of any prepayment or
other penalties; (c) require notice to, or the consent of, any party to any
agreement or commitment, lease or license, to which ILMI is bound; (d) result
in the creation or imposition of any security interest, lien, or other
encumbrance upon any material property or assets of ILMI; or (e) violate any
material statute or law or any judgment, decree, order, regulation or rule of
any court or governmental authority to which ILMI is bound or subject.
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2.15 Full Disclosure. None of the representations and warranties
made by ILMI herein, or in any schedule, exhibit or certificate furnished or
to be furnished in connection with this Agreement by ILMI, or on its behalf,
contains or will contain any untrue statement of material fact.
2.16 Assets. ILMI has good and marketable title to all of its
tangible properties and such tangible properties are not subject to any
material liens or encumbrances.
2.17 Material Contracts and Obligations. Attached hereto on Schedule
2 is a list of all agreements, contracts, indebtedness, liabilities and other
obligations to which ILMI is a party or by which it is bound that are material
to the conduct and operations of its business and properties, which provide
for payments to or by the Company in excess of $25,000; or which involve
transactions or proposed transactions between the Company and its officers,
directors, affiliates or any affiliate thereof. Copies of such agreements and
contracts and documentation evidencing such liabilities and other obligations
have been made available for inspection by Aspen and its counsel. All of such
agreements and contracts are valid, binding and in full force and effect in
all material respects, assuming due execution by the other parties to such
agreements and contracts.
2.18 Consents and Approvals. No consent, approval or authorization
of, or declaration, filing or registration with, any governmental or
regulatory authority is required to be made or obtained by ILMI in connection
with: (a) the execution and delivery by ILMI of this Agreement; (b) the
performance by ILMI of its obligations under this Agreement; or (c) the
consummation by ILMI of the transactions contemplated under this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF ASPEN
Except as disclosed in Schedule 3 which is attached hereto and
incorporated herein by reference, Aspen represents and warrants to ILMI that:
3.1 Organization. Aspen is a corporation duly organized, valid
existing, and in good standing under the laws of Nevada, has all necessary
corporate powers to own properties and to carry on business, and it is not now
conducting any business, except to the extent to which the effecting of the
transaction contemplated by this Agreement constitutes doing business.
3.2 Capitalization. The authorized capital stock of Aspen consists
of 100,000,000 shares of $.0001 par value Common Stock of which 1,250,000
shares of Common Stock are currently issued and outstanding, and 5,000,000
shares of $.0001 par value preferred stock of which no shares are issued and
outstanding. All of the issued and outstanding shares of Common Stock are
duly authorized, validly issued, fully paid and nonassessable. There are no
outstanding subscriptions, options, rights, warrants, convertible securities,
or other agreements or commitments obligating Aspen to issue or to transfer
from treasury any additional shares of its capital stock of any class. Aspen
shareholders will surrender for cancellation a total of 650,000 shares of
Aspen common stock at the Closing.
3.3 Subsidiaries. Aspen does not presently have any subsidiaries or
own any interest in any other enterprise (whether or not such enterprise is a
corporation).
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3.4 Directors and Officers. Schedule 3 contains the names and titles
of all directors and officers of Aspen as of the date of this Agreement.
3.5 Financial Statements. Aspen has delivered to ILMI its audited
balance sheet and statements of operations and cash flows as of and for the
period ended December 31, 1998, and its unaudited balance sheet and statements
of operations and cash flows as of and for the period ended June 30, 1999
(collectively the "Financial Statements"). The Financial Statements are
complete and correct in all material respects and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated. The Financial Statements
accurately set out and describe the financial condition and operating results
of the Company as of the dates, and for the periods, indicated therein. As of
the Closing, the total liabilities of Aspen shall not exceed zero.
3.6 Absence of Changes. Since June 30, 1999, except for changes in
the ordinary course of business which have not in the aggregate been
materially adverse, to the best of Aspen's knowledge, Aspen has not
experienced or suffered any material adverse change in its condition
(financial or otherwise), results of operations, properties, business or
prospects or waived or surrendered any claim or right of material value.
3.7 Absence of Undisclosed Liabilities. Neither Aspen nor any of its
properties or assets are subject to any liabilities or obligations of any
nature, whether absolute, accrued, contingent or otherwise and whether due or
to become due, that are not reflected in the financial statements presented to
ILMI.
3.8 Tax Returns. Within the times and in the manner prescribed by
law, Aspen has filed all federal, state and local tax returns required by law
and has paid all taxes, assessments and penalties due and payable.
3.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, ILMI
shall have the opportunity to meet with Aspen's accountants and attorneys to
discuss the financial condition of Aspen. Aspen shall make available to ILMI
all books and records of Aspen.
3.10 Trade Names and Rights. Aspen does not use any trademark,
service xxxx, trade name, or copyright in its business, or own any trademarks,
trademark registrations or applications, trade names, service marks,
copyrights, copyright registrations or applications.
3.11 Compliance with Laws. To the best of Aspen's knowledge, Aspen
has complied with, and is not in violation of, applicable federal, state or
local statutes, laws and regulations (including, without limitation, any
applicable building, zoning, or other law, ordinance, or regulation) affecting
its properties or the operation of its business or with which it is otherwise
required to comply.
3.12 Litigation. Aspen is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or governmental
investigation pending or, to the best knowledge of Aspen, threatened against
or affecting Aspen or its business, assets, or financial condition. Aspen is
not in default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department agency, or
instrumentality. Aspen is not engaged in any legal action to recover moneys
due to it.
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3.13 No Pending Investigation. Aspen is not aware of any pending
investigations or legal proceedings by the SEC, any state securities
regulatory agency, or any other governmental agency regarding Aspen.
3.14 Authority. Aspen has full corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. The Board of Directors of Aspen has taken all action required
to authorize the execution and delivery of this Agreement by or on behalf of
Aspen, the performance of the obligations of Aspen under this Agreement and
the consummation by Aspen of the transactions contemplated under this
Agreement. No other corporate proceedings on the part of Aspen are necessary
to authorize the execution and delivery of this Agreement by Aspen in the
performance of its obligations under this Agreement. This Agreement is, and
when executed and delivered by Aspen, will be a valid and binding agreement of
Aspen, enforceable against Aspen in accordance with its terms, except as such
enforceability may be limited by general principles of equity, bankruptcy,
insolvency, moratorium and similar laws relating to creditors rights
generally.
3.15 Ability to Carry Out Obligations. Neither the execution and
delivery of this Agreement, the performance by Aspen of its obligations under
this Agreement, nor the consummation of the transactions contemplated under
this Agreement will, to the best of Aspen's knowledge: (a) violate any
provision of Aspen's articles of incorporation or bylaws; (b) with or without
the giving of notice or the passage of time, or both, violate, or be in
conflict with, or constitute a default under, or cause or permit the
termination or the acceleration of the maturity of, any debt, contract,
agreement or obligation of Aspen, or require the payment of any prepayment or
other penalties; (c) require notice to, or the consent of, any party to any
agreement or commitment, lease or license, to which Aspen is bound; (d) result
in the creation or imposition of any security interest, lien or other
encumbrance upon any property or assets of Aspen; or (e) violate any statute
or law or any judgment, decree, order, regulation or rule of any court or
governmental authority to which Aspen is bound or subject.
3.16 Validity of Aspen Shares. The shares of Aspen Common Stock to
be delivered pursuant to this Agreement, when issued in accordance with the
provisions of this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable.
3.17 Full Disclosure. None of the representations and warranties
made by Aspen herein, or in any exhibit, certificate or memorandum furnished
or to be furnished by Aspen, or on its behalf, contains or will contain any
untrue statement of material fact, or omit any material fact the omission of
which would be misleading.
3.18 Assets. Aspen does not have any assets.
3.19 Material Contracts and Obligations. Except for its agreement
with Corporate Stock Transfer, Aspen has no material contracts to which it is
a party or by which it is bound.
3.20 Consents and Approvals. No consent, approval or authorization
of, or declaration, filing or registration with, any governmental or
regulatory authority is required to be made or obtained by Aspen in connection
with: (a) the execution and delivery by Aspen of its obligations under this
Agreement; (b) the performance by Aspen of its obligations under this
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Agreement; or (c) the consummation by Aspen of the transactions contemplated
by this Agreement.
3.21 Real Property. Aspen does not own, use or claim any interest in
any real property, including without limitation any license, leasehold or any
similar interest in real property.
ARTICLE 4
COVENANTS
4.1 Investigative Rights. From the date of this Agreement until the
Closing Date, each party shall provide to the other party, and such other
party's counsels, accountants, auditors, and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party's properties, books, contracts, commitments, and
records for the purpose of examining the same. Each party shall furnish the
other party with all information concerning each party's affairs as the other
party may reasonably request. If the transaction contemplated hereby is not
completed, all documents received by each party and/or its attorneys and
accountants, auditors or other authorized representatives shall be returned to
the other party who provided same upon request. The parties hereto, their
directors, employees, agents and representatives shall not disclose any of the
information described above unless such information is already disclosed to
the public, without the prior written consent of the party to which the
confidential information pertains. Each party shall take such steps as are
necessary to prevent disclosure of such information to unauthorized third
parties.
4.2 Conduct of Business. Prior to the Closing, Aspen and ILMI shall
each conduct its business in the normal course, and shall not sell, pledge, or
assign any assets, without the prior written approval of the other party,
except in the regular course of business or as contemplated in previously
disclosed contractual obligations. Neither Aspen nor ILMI shall amend its
Articles of Incorporation or Bylaws, declare dividends, redeem or sell stock
or other securities, incur additional or newly-funded liabilities, acquire or
dispose of fixed assets, change employment terms, enter into any material or
long-term contract, guarantee obligations of any third party, settle or
discharge any balance sheet receivable for less than its stated amount, pay
more on any liability than its stated amount, or enter into any other
transaction other than in the regular course of business except as otherwise
contemplated herein.
ARTICLE 5
CONDITIONS PRECEDENT TO ASPEN'S PERFORMANCE
5.1 Conditions. The obligations of Aspen hereunder shall be subject
to the satisfaction, at or before the Closing, of all the conditions set forth
in this Article 5. Aspen may waive any or all of these conditions in whole or
in part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by Aspen of any other condition of or any
of Aspen's other rights or remedies, at law or in equity, if ILMI shall be in
default of any of their representations, warranties, or covenants under this
Agreement.
5.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by ILMI in this Agreement
or in any written statement that shall be delivered to Aspen by ILMI under
this Agreement shall be true and accurate on and as of the Closing Date as
though made at that time.
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5.3 Performance. ILMI shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to
be performed or complied with by it, on or before the Closing Date.
5.4 Acceptance by ILMI Shareholders. The holders of not less than
95% of the issued and outstanding shares of common stock of ILMI shall have
agreed to exchange their shares for shares of Aspen Common Stock.
5.5 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against ILMI on or before the Closing Date.
5.6 Officer's Certificate. ILMI shall have delivered to Aspen a
certificate, dated the Closing Date, and signed by the Chief Executive Officer
of ILMI, certifying that each of the conditions specified in Sections 5.2
through 5.5 hereof have been fulfilled.
ARTICLE 6
CONDITIONS PRECEDENT TO ILMI'S PERFORMANCE
6.1 Conditions. ILMI's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in
this Article 6. ILMI may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a
condition shall constitute a waiver by ILMI of any other condition of or any
of ILMI's rights or remedies, at law or in equity, if Aspen shall be in
default of any of its representations, warranties, or covenants under this
Agreement.
6.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by Aspen in this Agreement
or in any written statement that shall be delivered to ILMI by Aspen under
this Agreement shall be true and accurate on and as of the Closing Date as
though made at that time.
6.3 Performance. Aspen shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to
be performed or complied with by them, on or before the Closing Date.
6.4 Absence of Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against Aspen on or before the Closing Date.
6.5 Directors Aspen. Effective on the Closing, Aspen shall have
fixed the size of its Board of Directors at seven (7) persons, and such Board
of Directors shall include Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxx Xxxxx, Xxxx Xxxxxx and Xxxxxxx Xxxxxx. The current
Officers and Directors of Aspen shall have submitted their resignations as the
Officers and Directors of Aspen effective on the Closing of this transaction.
6.6 Officers of Aspen. Effective on the Closing, Aspen shall have
elected the following new Officers of Aspen:
Xxxxxxx Xxxxxxx - President and Chairman
Xxxxxx Xxxxxxx - Acting CFO and Treasurer
Xxxxxx Xxxxxxx - Secretary
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6.7 Cancellation of Shares. Aspen shareholders will surrender for
cancellation certificates requesting a total of 650,000 shares of Aspen common
stock.
6.8 Officers' Certificate. Aspen shall have delivered to ILMI a
certificate, dated the Closing Date and signed by the President of Aspen
certifying that each of the conditions specified in Sections 6.2 through 6.7
have been fulfilled.
6.9 Name Change. Aspen shall have changed its name to such name as
ILMI shall have requested (assuming availability of that name in Nevada) and
shall have adopted the 1999 Incentive Stock Option Plan desired by ILMI.
ARTICLE 7
CLOSING
7.1 Closing. The Closing of this transaction shall be held at the
offices of Xxxx Xxxxx Xxxxxxxx Xxxxx & Xxxxxx, P.C., 600 Seventeenth Street,
Suite 0000 Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, or such other place as shall
be mutually agreed upon, on such date as shall be mutually agreed upon by the
parties, but in no event shall the Closing be later than August 31, 1999. At
the Closing:
7.2 ILMI shall deliver Letters of Acceptance and the certificates
representing the shares of ILMI held by the shareholders of ILMI accepting the
Exchange Offer ("Accepting Shareholders") to Aspen.
7.3 Each Accepting Shareholder shall receive a certificate or
certificates representing the number of shares of Aspen Common Stock for which
the shares of ILMI common stock shall have been exchanged.
7.4 Aspen shall deliver an officer's certificate, as described in
Section 6.8 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth in this Agreement on behalf of
Aspen are true and correct as of, or have been fully performed and complied
with by, the Closing Date.
7.5 Aspen shall deliver a signed Consent and/or Minutes of the
Directors of Aspen approving this Agreement and each matter to be approved by
the Directors of Aspen under this Agreement.
7.6 ILMI shall deliver an officer's certificate, as described in
Section 5.6 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth in this Agreement on behalf of
ILMI are true and correct as of, or have been fully performed and complied
with by, the Closing Date.
7.7 ILMI shall deliver a signed Consent or Minutes of the Directors
of ILMI approving this Agreement and each matter to be approved by the
Directors of ILMI under this Agreement.
7.8 Aspen shareholders shall deliver for cancellation certificates
representing 650,000 shares of Aspen common stock.
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ARTICLE 8
MISCELLANEOUS
8.1 Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
8.2 No Oral Change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but it can be changed by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
8.3 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to
insist in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future
of any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision
hereof shall not be deemed a waiver of such breach or failure, and (iii) no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other or subsequent breach.
8.4 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
8.5 Entire Agreement. This Agreement contains the entire Agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
8.6 Choice of Law. This Agreement and its application shall be
governed by the laws of the State of Nevada, except to the extent its conflict
of laws provisions would apply the laws of another jurisdiction.
8.7 Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party
to whom notice is to be given, or on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed as follows:
Aspen:
Aspen Capital, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxx X. Xxxxxx, Esq.
Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C.
600 Seventeenth Street, Suite 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
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ILMI:
International Licensing & Merchandising, Inc.
0000 Xxxxxxx 00, Xxxxx X
Xxxx, Xxx Xxxxxx 00000
8.8 Binding Effect. This Agreement shall inure to and be binding
upon the heirs, executors, personal representatives, successors and assigns of
each of the parties to this Agreement.
8.9 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other
and further documents and take such other and further actions as may be
necessary or convenient to effect the transaction described herein.
8.10 Brokers. The parties hereto represent and agree that no broker
has brought about the aforementioned transaction. Each of the parties hereto
shall indemnify and hold the other harmless against any and all claims,
losses, liabilities or expenses which may be asserted against it as a result
of its dealings, arrangements or agreements with any broker or person, except
as described in this paragraph.
8.11 Announcements. Aspen and ILMI will consult and cooperate with
each other as to the timing and content of any announcements of the
transactions contemplated hereby to the general public or to employees,
customers or suppliers.
8.12 Expenses. ILMI and Aspen agree that ILMI has deposited $5,000
in the trust account of Xxxx Xxxxx Xxxxxxxx Xxxxx & Xxxxxx, P.C. ("Xxxx
Xxxxx") and that these funds will be used to pay the legal fees of Xxxx Xxxxx
which is representing Aspen in this transaction. To the extent Xxxx Xxxxx'x
fees are less than $5,000 the balance will be returned to ILMI. Other than
for these legal fees, ILMI and Aspen will pay their own expenses reasonably
incurred in connection with this transaction.
8.13 Exhibits. As of the execution hereof, the parties hereto have
provided each other with the Exhibits provided for herein above, including any
items referenced therein or required to be attached thereto. Any material
changes to the Exhibits shall be immediately disclosed to the other party.
AGREED TO AND ACCEPTED as of the date first above written.
ILMI CORPORATION INTERNATIONAL LICENSING &
MERCHANDISING INC.
By /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx, President Xxxxxxx Xxxxxxx, President
11
SCHEDULE 1
Number of Number of
Shares of Shares of
Name and Address ILMI Aspen
Xxxxxxx Xxxxxxx
0000 Xxxxxxx #00
Xxxx Xxx., XX 00000 1,242,500 2,485,000
Xxxxxx X Xxxxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, XX 00000 347,500 695,000
Xxxxxxx Xxxxxxxx
Xxxxxxxxxxxxx 00
D-85598 Baldham, Germany 150,000 300,000
Xxxxx Xxxxxxxxx
c/o Weiner & Xxxxxxx
Meridian Center
Xxx Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000 40,000 80,000
Claus Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxx Xxxxxxx 00
Xxxxx, 00000 Xxxxxxx 95,000 190,000
Xxxxxx Xxxxx
00 Xxxxxxx Xxxxx
Xxx Xxxxxx, XX 00000 250,000 500,000
Xxxxxxx Xxxxxxxx
0000 Xxxxx Xxxxx Xxxx Xxxxxx
Xxxx, XX 00000 28,000 56,000
Xxxxxx Xxxxxxx
c/o Weiner & Xxxxxxx
Meridian Center
Xxx Xxxxxxxxxx Xxx Xxxx
Xxxxxxxx, XX 00000 50,000 100,000
Xxxxxxx Xxxxxx
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000 25,000 50,000
Xxxxx Xxxxxxx
0 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000 150,000 300,000
Jaytern Associates, Inc.
- Pension Plan
00 Xxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000 500,000 1,000,000
Xxxxx Xxxxxx
c/o Securities & Investment
Planning Company
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 250,000 500,000
Xxxxxx Xxxxxxxx
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000 5,000 10,000
Xxxxx Xxxxx
XX Xxx 000
Xxx Xxxx, XX 00000 5,000 10,000
Xxxxxx Xxxxxxx
XX Xxx 000
Xxxxxxx, XX 00000 10,000 20,000
Xxxxxx Xxxxxxx
000 00xx Xxxxxx, Xxx. X
Xxxxxxx Xxxxx, XX 00000 30,000 60,000
Xxxx Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, XX 00000 2,000 4,000
Xxxxxx Xxxxx
0000 Xxxx Xxx Xxx Xxxx
Xxxxxxxxxx, XX 00000 14,286 28,572
Xxxxx Xxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 125,000 250,000
Xxxx Xxxxxx
c/o IXL, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 75,000 150,000
Xxxx Xxxxxx
c/o IXL, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000 25,000 50,000
Xxxxxxxx Xxxxxxxxxx XXX
Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000 30,000 60,000
Xxxxxx Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, XX 00000 1,000 2,000
Xxxxxx Xxxxxx
0000 Xxxxx Xxxx, Xxx. 0X
Xxxxxx Xxxxxx, XX 00000 3,000 6,000
Total 3,453,286 6,906,572
2
SCHEDULE 2
INTERNATIONAL LICENSING & MERCHANDISING, INC.
("ILMI")
2.4 The Officers and Directors of ILMI are as follows:
Name Position
Xxxxxxx X. Xxxxxxx President and Chairman
Xxxxxx Xxxxxxx Acting CFO and Director
Xxxxxx Xxxxxxx General Counsel and Director
Xxxxxxx Xxxxxxxx Director
Xxxxxxx Xxxxxx Director
Xxxxx Xxxxx Director
Xxxx Xxxxxx Director
2.17 Material Contracts and Obligations.
1. License Agreement with EXPO 2000 dated March 11, 1999, related to
Twipsy TV-Animation Series.
2. License Agreement with EXPO 2000 dated March 11, 1999, related to the
title and motif of the logo "EXPO 2000 Hannover" and the mascot "TWIPSY."
SCHEDULE 3
ASPEN CAPITAL, INC.
("Aspen")
3.2 Directors and Officers of Aspen:
Xxxxxxx X. Xxxxxx - President, Secretary, Treasurer and Director
3.19 Material Contracts of Aspen
None
