ACQUISITION AGREEMENT
Agreement dated as of November 5, 1999 between
XxxxxXxxx.xxx, Inc., Inc., a Nevada corporation ("Buyer") on
behalf of its shareholders, and Game Xxxxxx, Inc., a Nevada
corporation (" Seller") on behalf of its shareholders.
The parties wish to provide for Seller's sale of the Shares
to Buyer and Buyer 's purchase of the Shares from Seller on
the terms and conditions of this Agreement.
The parties agree as follows:
1.The Acquisition.
1.1 Purchase and Sale Subject to the terms and
conditions of
this Agreement, at the Closing to be held as provided
in Section
2, Seller shall sell the Shares to Buyer, and Buyer
shall
purchase the Shares from Seller, free and clear of
all
Encumbrances. Buyer shall change its name to
XxxxXxxxxx.xxx,
Inc..
1.2 Purchase Price. Purchaser will exchange 7,666,667 shares of
its restricted common stock for all of the outstanding capital
stock or ownership interest of Game Xxxxxx, Inc.. It is
anticipated that this transaction is a non taxable share exchange
under Rule 368 of the Internal Revenue Code.
2. The Closing.
2.1 Place and Time.The closing of the sale and
purchase of the Shares (the "Closing") shall
take place at the offices of Xxxxx Xxxxxxx,
Esq. 0000 X. Xxxxxx #000, Xxx Xxxxx, XX 00000
no later than the close of business (Las Vegas
time) on 11/5/99, or at such other place, date
and time as the parties may agree in writing.
2.2 Deliveries by Seller. At the Closing, Seller
shall deliver the following to Buyer:
(a) Certificates representing the Shares, duly
endorsed for
transfer to Buyer and accompanied by any applicable
stock
transfer tax stamps; Seller shall cause
XxxxxXxxx.xxx, Inc., to
change those certificates for, and to deliver to
Buyer at the
Closing, a certificate representing the Shares
registered in the
name of Buyer (without any legend or other
reference to any
Encumbrance).
(b) The documents contemplated by Section 3.
(c) All other documents, instruments and writings
required by this Agreement to be delivered by
Seller at the Closing and any other documents
or records relating to Game Xxxxxx, Inc.'s
business reasonably requested by Buyer in
connection with this Agreement.
2.3 Deliveries by Buyer. At the Closing, Buyer shall
deliver the following to Seller:
(a) The shares as contemplated by section 1.
(b) The documents contemplated by Section 4.
(c) All other documents, instruments and writings
required by
this Agreement to be delivered by Buyer at the
Closing.
(d) A legal opinion certifying the Buyer
representatives and
warranties.
3. Conditions to Buyer 's Obligations.
The obligations of Buyer to effect the Closing shall be
subject to the satisfaction at or prior to the Closing of
the following conditions, any one or more of which may be
waived by Buyer:
3.1 Representations, Warranties and Agreements.
(a)The representations and warranties of Seller
set forth in this Agreement shall be true and
complete in all material respects as of the
Closing Date as though made at such time, (b)
Seller shall have performed and complied in
all material respects with the agreements
contained in this Agreement required to be
performed and complied with by it at or prior
to the Closing and (c) Buyer shall have
received a certificate to that effect signed
by an authorized representative of Seller.
3.2 Resignations of Directors. All directors of
XxxxxXxxx.xxx, Inc., Inc. and its Subsidiaries
whose resignations shall have been requested by
Buyer not less than ten Business Days before the
Closing Date shall have submitted their
resignations or been removed effective as of the
Closing Date.
4. Conditions to Seller 's Obligations.
The obligations of Seller to effect the Closing shall be
subject to the satisfaction at or prior to the Closing of
the following conditions, any one or more of which may be
waived by Seller:
4.1 Representations, Warranties and Agreements.
(a) The representations and warranties of Buyer set
forth in this Agreement shall be true and
complete in all material respects as of the
Closing Date as though made at such time, (b)
Buyer shall have performed and complied in all
material respects with the agreements contained
in this Agreement required to be performed and
complied with by it prior to or at the Closing
and (c) Seller shall have received a certificate
to that effect signed by an officer of Buyer.
5. Representations and Warranties of Seller.
Seller represents and warrants to Buyer that, to the
Knowledge of Seller (which limitation shall not apply to
Section 5.3), and except as set forth in the Disclosure
Letter:
5.1 Organization of Seller; Authorization. Seller is a
corporation duly organized, validly existing and in good standing
under the laws of Nevada with full corporate power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary
corporate action of Seller and this Agreement constitutes a valid
and binding obligation of Seller, enforceable against it in
accordance with its terms.
5.2 Conflict as to Seller: Neither the execution and
delivery
of this Agreement nor the performance of Buyer's obligations
hereunder will (a) violate any provision of the certificate of
incorporation or by-laws of Seller or (b) violate any statute or
law or any judgement, decree, order, regulation or rule of any
court or other Governmental Body applicable to Seller.
5.3 Ownership of Shares. The delivery of certificates to
Buyer
and the payment to Seller will result in Buyer's immediate
acquisition of
record and beneficial ownership of the Shares, free and clear of
all
Encumbrances. There are no outstanding options, rights, conversion
rights,
agreements or commitments of any kind relating to the issuance,
sale or
transfer of any Equity Securities or other securities of Game
Xxxxxx, Inc.
5.4 Title to Properties. Either Game Xxxxxx, Inc. or one
of its
Subsidiaries owns all the material properties and
assets that
they purport to own (real, personal and mixed,
tangible and
intangible), including, without limitation, all the
material
properties and assets reflected in the Balance Sheet
(except for
property sold since the date of the Balance Sheet in
the ordinary
course of business or leased under capitalized
leases), and all
the material properties and assets purchased or
otherwise
acquired by Game Xxxxxx, Inc.. or any of its
Subsidiaries since
the date of the Balance Sheet.
5.5 Buildings, Plants and Equipment. The buildings,
plants,
structures and material items of equipment and other
personal
property owned or leased by Game Xxxxxx, Inc.. or
its
Subsidiaries are, in all respects material to the
business or
financial condition of Game Xxxxxx, Inc. and its
Subsidiaries,
taken as a whole, in good operating condition and
repair
(ordinary wear and tear excepted) and are adequate in
all such
respects for the purposes for which they are being
used.
5.6 Absence of Certain Changes. Since the date of the Balance
Sheet, neither Game Xxxxxx, Inc. nor any of its Subsidiaries
has:
(a) suffered the damage or destruction of
any of its properties or assets (whether or
not covered by insurance) which is materially
adverse to the business or financial
condition of Game Xxxxxx, Inc. and its
Subsidiaries, taken as a whole, or made any
disposition of any of its material properties
or assets other than in the ordinary course
of business;
(b)made any change or amendment in its
certificate of incorporation or by-laws, or
other governing instruments;
(c)issued or sold any Equity Securities or other
securities, acquired, directly or indirectly,
by redemption or otherwise, any such Equity
Securities, reclassified, split-up or
otherwise changed any such Equity Security,
or granted or entered into any options,
warrants, calls or commitments of any kind
with respect thereto;
(d)paid, discharged or satisfied any material
claim, liability or obligation (absolute,
accrued, contingent or otherwise), other than
in the ordinary course of business;
(e)prepaid any material obligation having a
maturity of more than 90 days from the date
such obligation was issued or incurred;
(f)cancelled any material debts or waived any
material claims or rights, except in the
ordinary course of business;
5.8No Material Adverse Change. Since the date of the
Balance Sheet, there has not been any material
adverse change in the business or financial
condition of Game Xxxxxx, Inc. and its
Subsidiaries taken as a whole, other than changes
resulting from economic conditions prevailing in
the United States.
5.9Brokers or Finders. Seller has not employed any
broker or finder or incurred any liability for
any brokerage or finder's fees or commissions or
similar payments in connection with the sale of
the Shares to Buyer.
5.10 Transactions with Directors and Officers.
Game Xxxxxx, Inc. and its Subsidiaries do not
engage in business with any Person (other than
Seller) in which any of Game Xxxxxx, Inc.'s
directors or officers has a material equity
interest. No director or officer of Game Xxxxxx,
Inc. owns any property, asset or right which is
material to the business of Game Xxxxxx, Inc.
and its Subsidiaries, taken as a whole.
6.Representations and Warranties of Buyer.
Buyer represents and warrants to Seller as follows:
6.1Organization of Buyer; Authorization. Buyer is a
corporation duly organized, validly existing and
in good standing under the laws of Nevada, with
full corporate power and authority to execute and
deliver this Agreement and to perform its
obligations hereunder. The execution, delivery
and performance of this Agreement have been duly
authorized by all necessary corporate action of
Buyer and this Agreement constitutes a valid and
binding obligation of Buyer, enforceable against
it in accordance with its terms.
6.2Brokers or Finders. Buyer has not employed any
broker or finder or incurred any liability for
any brokerage or finder's fees or commissions or
similar payments in connection with any of the
transactions contemplated hereby.
6.3 Purchase for Investment. Buyer is purchasing the
shares
solely for its own account for the purpose of
investment and not
with a view to, or for sale in connection with, any
distribution
of any portion thereof in violation of any applicable
securities
law.
6.4 Conflict as to Buyer. Neither the execution and delivery of
this Agreement nor the performance of Buyer's obligations
hereunder will (a) violate any provision of the certificate of
incorporation or by-laws of Buyer or (b) violate any statute or
law or any judgment, decree, order, regulation or rule of any
court or other Governmental Body applicable to Buyer.
6.5 Buyer is a publicly traded company which trades on the
OTC:BB. Buyer has properly filed all documentation with the SEC,
NASD or other applicable bodies necessary to become and remain a
publicly traded company.
6.6 There are no pending or threatened legal or regulatory
claims, demands or liabilities of any kind or nature against
buyers of it assets.
6.7 Buyer has filed all federal, state and local income or other
tax returns as required by law, and has paid all taxes which are
due, and has no tax delinquencies of any kind.
6.8 There are currently 2,994,672 shares issued and outstanding
in Buyer. The shares, when issued were properly distributed under
applicable securities laws, and Buyer has taken no action to
cause said stock to lose its trading status. There are no
warrants, option agreements or pending subscription agreements
whereby Buyer is obligated to issue any additional stock to any
person.
6.9 Upon closing, buyers shareholders will receive a controlling
interest in and complete management control over Seller by virtue
of their stock ownership, and there are no shareholder rights or
agreements, or other legal impediments to the transfer of
management control of Sellers.
7. Access and Reporting; Filings With Governmental
Authorities.
7.1 Access. Between the date of this Agreement and
the Closing Date, Seller shall, and shall cause
Game Xxxxxx, Inc. to, (a) give Buyer and its
authorized representatives reasonable access to
all plants, offices, warehouse and other
facilities and properties of Game Xxxxxx, Inc.
and its Subsidiaries and to the books and records
of Game Xxxxxx, Inc. and its Subsidiaries, (b)
permit Buyer to make inspections thereof, and (c)
cause its officers and its advisors to furnish
Buyer with such financial and operating data and
other information with respect to the business
and properties of Game Xxxxxx, Inc. and its
Subsidiaries and to discuss with Buyer and its
authorized representatives the affairs of Game
Xxxxxx, Inc. and its Subsidiaries, all as Buyer
may from time to time reasonably request.
7.2 Exclusivity. From the date hereof until the
earlier of the Closing or the termination of this
Agreement, Seller shall not solicit or negotiate
or enter into any agreement with any other Person
with respect to or in furtherance of any proposal
for a merger or business combination involving,
or acquisition of any interest in, or (except in
the ordinary course of business) sale of assets
by, Game Xxxxxx, Inc., except for the acquisition
of the Shares by Buyer.
7.3 Publicity. Between the date of this Agreement and
the Closing Date, Seller and Buyer shall, and
Seller and Buyer shall cause XxxxxXxxx.xxx, Inc.,
Inc. to, discuss and coordinate with respect to
any public filing or announcement or any internal
or private announcement (including any general
announcement to employees) concerning the
contemplated transaction.
7.4 Confidentiality. Prior to the Closing Date (or at
any time if the Closing does not occur) Buyer
shall keep confidential and not disclose to any
Person (other than its employees, attorneys,
accountants and advisors) or use (except in
connection with the transactions contemplated
hereby) all non-public information obtained by
Buyer pursuant to Section 7.1. Following the
Closing, Seller shall keep confidential and not
disclose to any Person (other than its employees,
attorneys, accountants and advisors) or use
(except in connection with preparing Tax Returns
and conducting proceeds relating to Taxes) any
nonpublic information relating to XxxxxXxxx.xxx,
Inc., Inc. and its Subsidiaries. This Section 7.7
shall not be violated by disclosure pursuant to
court order or as otherwise required by law, on
condition that notice of the requirement for such
disclosure is given the other party prior to
making any disclosure and the party subject to
such requirement cooperates as the other may
reasonably request in resisting it. If the
Closing does not occur, Buyer shall return to
Seller, or destroy, all information it shall have
received from Seller or Game Xxxxxx, Inc.. in
connection with this Agreement and the
transactions contemplated hereby, together with
any copies or summaries thereof or extracts
therefrom. Seller and Buyer shall use their best
efforts to cause their respective
representatives, employees, attorneys,
accountants and advisors to whom information is
disclosed pursuant to Sections 7.1 and 7.6 to
comply with the provisions of this Section 7.7.
8. Conduct of Game Xxxxxx, Inc.'s Business Prior to
the Closing.
8.1 Operation in Ordinary Course. Between the date of
this Agreement and the Closing Date, Seller shall
cause Game Xxxxxx, Inc. and its Subsidiaries to
conduct their businesses in all material respects
in the ordinary course.
8.2 Business Organization. Between the date of this
Agreement and the Closing Date, Seller shall use
its reasonable efforts, and shall cause Game
Xxxxxx, Inc. and each of its Subsidiaries to use
its respective reasonable efforts, to (a)
preserve substantially intact the business
organization of Game Xxxxxx, Inc. and each of its
Subsidiaries and keep available the services of
the present officers and employees of Game
Xxxxxx, Inc. and each of its Subsidiaries, and
(b) preserve in all material respects the present
business relationships and good will of Game
Xxxxxx, Inc.. and each of its Subsidiaries.
8.3Corporate Organization. Between the date of this
Agreement and the Closing Date, neither Buyer or
Seller shall not cause or permit any amendment of
the certificate of incorporation or by-laws (or
other governing instrument) of Game Xxxxxx, Inc.
or any of its Subsidiaries, and shall cause Game
Xxxxxx, Inc. and each of its Subsidiaries not to:
(a)issue, sell or otherwise dispose of any of
its Equity Securities, or create, sell or
otherwise dispose of any options, rights,
conversion rights or other agreements or
commitments of any kind relating to the
issuance, sale or disposition of any of its
Equity Securities;
(b)sell or otherwise dispose of any Equity
Securities of Game Xxxxxx, Inc. or any of its
Subsidiaries, or create or suffer to be
created any Encumbrance thereon, or create,
sell or otherwise dispose of any options,
rights, conversion rights or other agreements
or commitments of any kind relating to the
sale or disposition of any Equity Securities
of Game Xxxxxx, Inc.. or any of its
Subsidiaries;
(c)reclassify, split up or otherwise change any
of its Equity Securities;
(d)be party to any merger, consolidation or
other business combination;
(e)sell, lease, license or otherwise dispose of
any of its properties or assets (including,
but not limited to rights with respect to
patents and registered trademarks and
copyrights or other proprietary rights), in
an amount which is material to the business
or financial condition of Game Xxxxxx, Inc..
and its Subsidiaries, taken as a whole,
except in the ordinary course of business.
9. Survival of Representations and Warranties;
Indemnification.
9.1 Xxxxxxxx.Xx representation or warranty contained
in this Agreement or in any certificate or
document delivered pursuant hereto shall survive
the Closing, except for those contained in
Sections 5.1, 5.2, 5.3(only as to Seller), 5.10,
6.1, 6.2, 6.3, 6.4(the "Surviving Representations
and Warranties ").
9.2 Indemnification by Seller. Seller shall indemnify
and hold harmless Buyer and XxxxxXxxx.xxx, Inc.,
Inc., and shall reimburse Buyer and
XxxxxXxxx.xxx, Inc., Inc. for, any loss,
liability, damage or expense (including
reasonable attorneys fees) (collectively,
"Damages") arising from or in connection with (a)
any inaccuracy in any of the Surviving
Representations and Warranties of Seller in this
Agreement or (b) any failure by Seller to perform
or comply with any agreement in this Agreement.
9.3 Indemnification by Buyer. Buyer shall indemnify
and hold harmless Seller, and shall reimburse
Seller for, any Damages arising from or in
connection with (a) any inaccuracy in any of the
Surviving Representations and Warranties of Buyer
in this Agreement, (b) any failure by Buyer to
perform or comply with any agreement in this
Agreement, except that after the Closing no claim
shall be made with respect to the failure to
perform or comply with any agreement required to
have been performed or complied with prior to the
Closing Date, and (c) any payments made by
Seller after the Closing pursuant to any guaranty
by Seller of any obligation of XxxxxXxxx.xxx,
Inc., Inc. or any of its Subsidiaries (other than
as contemplated by Section 2.4). Buyer shall use
its best efforts to obtain Seller's release from
any such guaranties.
10. Termination.
Termination.: This Agreement may be terminated
before the Closing occurs only as follows:
(a)By written agreement of Seller and Buyer at
any time.
(b)By Seller, by notice to Buyer at any time, if
one or more of the conditions specified in
Section 4 is not satisfied at the time at
which the Closing (as it may be deferred
pursuant to Section 2.1) would otherwise
occur or if satisfaction of such a condition
is or becomes impossible.
(c)By Buyer, by notice to Seller at any time, if
one or more of the conditions specified in
Section 3 is not satisfied at the time at
which the Closing (as it may be deferred
pursuant to Section 2.1), would otherwise
occur of if satisfaction of such a condition
is or becomes impossible.
(d)By Buyer or Seller, by notice to the other at
any time after 2-22-99.
10. Effect of Termination.
If this Agreement is terminated pursuant to Section
10(a), this Agreement shall terminate without any
liability or further obligation of any party to
another.
11. Notices.
All notices, consents, assignments and other communications
under this Agreement shall be in writing and shall be
deemed to have been duly given when (a) delivered by hand,
(b) sent by telex or telecopier (with receipt confirmed),
provided that a copy is mailed by registered mail, return
receipt requested, or (c) received by the delivery service
(receipt requested), in each case to the appropriate
addresses, telex numbers and telecopier numbers set forth
below (or to such other addresses, telex numbers and
telecopier numbers as a party may designate as to itself by
notice to the other parties).
(a)If to Buyer: (b)If to Seller:
c/o Xxxxx X. Xxxxxxx, Esq. ----------------------
0000 X. Xxxxxx #000 ----------------------
Xxx Xxxxx, XX 00000 ----------------------
Telecopier No.: 000-000-0000 Telecopier No.:
Attention: Xxxxx X. Xxxxxxx Attention:
12. Miscellaneous.
12.1 Expenses.Each party shall bear its own
expenses incident to the preparation,
negotiation, execution and delivery of this
Agreement and the performance of its obligations
hereunder.
12.2Captions.The captions in this Agreement are
for convenience of reference only and shall not
be given any effect in the interpretation of this
agreement.
12.3No Waiver. The failure of a party to insist
upon strict adherence to any term of this
Agreement on any occasion shall not be considered
a waiver or deprive that party of the right
thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
Any waiver must be in writing.
12.4Exclusive Agreement; Amendment. This
Agreement supersedes all prior agreements among
the parties with respect to its subject matter
and is intended (with the documents referred to
herein) as a complete and exclusive statement of
the terms of the agreement among the parties with
respect thereto and cannot be changed or
terminated orally.
12.5Counterparts.This Agreement may be executed
in two or more counterparts, each of which shall
be considered an original, but all of which
together shall constitute the same instrument.
12.6 Governing Law. This Agreement and (unless otherwise
provided) all amendments hereof and waivers and
consents
hereunder shall be governed by the internal law of the
State of
Nevada, without regard to the conflicts of law
principles
thereof.
12.7 Binding Effect. This Agreement shall inure to the
benefit of
and be binding upon the parties hereto and their
respective
successors and assigns, provided that neither party
may assign
its rights hereunder without the consent of the other
except that
Buyer may assign its rights (but not its obligations)
under this
Agreement to its wholly-owned Subsidiary without the
consent of
Seller, provided that, after the Closing, no consent
of Seller
shall be needed in connection with any merger or
consolidation of
Buyer with or into another entity.
XxxxxXxxx.xxx, Inc., Inc.
By:/s/Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, President
GameWeaver, Inc..
By:/s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
