EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made this ___ day of
____________ 2000, by and among Xxxxxx Xxxxx ("Furla"), Xxxxxxx Xxxxxx
("Xxxxxx"), Xxxxxx/Furla Films, a California general partnership ("EF Films"),
and Xxxxxxx Xxxxxx Films, Inc., a California corporation ("RE Films") (all of
whom are collectively referred to as the "Seller" or "Sellers") and Xxxx
Resources Corporation, a New Mexico corporation ("Buyer" or "XXXX") with its
principal place of business located at 000 Xxxx Xxxxxxx, Xxxx Xxxxxxxx, Xxxxx
00000.
R E C I T A L S:
WHEREAS, Seller is the owner of the tangible and intangible assets associated or
used in connection with the operation of the Seller; and
WHEREAS, Seller desires to sell and transfer certain of the assets associated or
used in connection with the operation of the Seller; and
WHEREAS, the Buyer desires to acquire those certain assets of the Seller, upon
and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein and in reliance upon the representations and
warranties contained herein, the parties hereto covenant and agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS AND PROPERTY
1.1 Assets of Seller to be Transferred to Buyer. On the Closing Date (as
defined in Article VIII hereof), and subject to the terms and conditions set
forth in this Agreement, Buyer agrees to purchase, accept and acquire from
Seller, and Seller agrees to sell, transfer, assign, convey and deliver to
Buyer, all right, title and interest of Seller in and to the certain assets of
Seller associated or used in connection with the operation of the Seller (the
"Purchased Assets"). The Purchased Assets consist of all of the assets,
tangible property, contract rights, films, videos, intellectual property,
intangible property and all other tangibles and intangibles related to the
following entertainment projects: Street Pirates, Unholy Alliance, Revelation,
Imagining Argentina, Held For Xxxxxx, After Sex, Xxxxxx Xxxx Xxxx Comedy Special
and the Xxx Xxxxxxxx Wilderness Series. Exhibit 1.1 sets forth the list of all
of the Purchased Assets, a description thereof, the contracts related thereto,
and the rights thereof. Exhibit 4.6 sets forth a valuation of the Purchased
Assets obtained by the Sellers.
1.2 Intent of the Parties. Although the exhibits and the schedules to this
Agreement are intended to be complete, to the extent any rights or assets of
Seller are otherwise necessary for the ownership and use of the Purchased
Assets, but are not properly itemized or do not appear on the applicable
exhibits where required, then, unless this Agreement otherwise provides directly
for Buyer to provide for or obtain such rights or assets in a different way, the
general language of Section 1.1 shall govern and such rights and assets shall
nonetheless be deemed transferred to Buyer at the Closing.
1.3 Excluded Assets. For the purposes of this Agreement, the term
"Purchased Assets" shall not include and Seller shall not sell or assign to
Buyer, and Buyer shall not purchase or accept assignment from Seller of, any
right, title or interest owned by Seller in any other assets (the "Excluded
Assets").
ARTICLE II
NO ASSUMED LIABILITIES
The Buyer shall have no obligation to assume and shall not assume any
liabilities of the Seller except written contractual liabilities contained in
the Purchased Assets.
ARTICLE III
PURCHASE PRICE AND PAYMENT
As consideration for the Purchased Assets, Buyer shall pay to Seller the amount
of 12,207,000 shares of common stock of the Buyer (the "Exchange Shares").
Sellers agree that the Exchange Shares shall be in the names and amounts as set
forth in Exhibit 3.1
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SELLERS
All of the Sellers, who are Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx/Furla Films,
and Xxxxxxx Xxxxxx Films, Inc., jointly and severally represent and warrant to
Buyer as follows:
4.1 Organization and Capitalization of Sellers. Seller Xxxxxxx Xxxxxx
Films, Inc. is a corporation duly organized, validly existing and in good
standing under the laws of the State of California, with full power and
authority and all necessary governmental and regulatory licenses, permits and
authorizations to carry on the businesses in which it is engaged, to own the
properties that it owns currently and to perform its obligations under this
Agreement, is duly qualified or licensed to do business and is in good standing
as a foreign corporation in all states or jurisdictions which the conduct of
such business requires such qualification and which the failure to be so
qualified or licensed would have a material adverse effect on the business of
the Seller. Seller Xxxxxx/Furla Films is a general partnership duly organized,
validly existing and in good standing under the laws of the State of California,
with full power and authority and all necessary governmental and regulatory
licenses, permits and authorizations to carry on the businesses in which it is
engaged, to own the properties that it owns currently and to perform its
obligations under this Agreement.
4.2 Authorization of Agreement. Sellers have all requisite corporate,
partnership or individual power and authority to execute and deliver this
Agreement and to perform their obligations hereunder. The execution and
delivery by Sellers of this Agreement and the performance by Sellers of their
obligations hereunder (a) have been duly and validly authorized by all requisite
corporate , partnership or individual action and (b) will not violate their
charter or bylaws (or similar document of entity governance) or any order, writ,
injunction, decree, statute, rule or regulations applicable to them or any of
their properties or assets, or be in conflict with, result in a breach of or
constitute a default under any note, bond, indenture, mortgage, lease, license,
franchise agreement or other agreement, instrument or obligation, or result in
the creation or imposition of any lien, charge or encumbrance of any kind or
nature whatsoever upon any of the properties or assets of Sellers. This
Agreement and each and every agreement, document, exhibit and instrument to be
executed, delivered and performed by the Sellers in connection herewith
constitute the valid and legally binding obligations of the Sellers enforceable
against them, except as enforceability may be limited by applicable equitable
principles or by bankruptcy, insolvency, reorganization, moratorium, or similar
laws from time to time in effect affecting the enforcement of creditors' rights
generally.
4.3 Consents. Except as set forth on Exhibit 4.3, no consent of, approval
by, order or authorization of, or registration, declaration or filing by Seller
with any court or any governmental or regulatory agency or authority having
jurisdiction over Seller or any of its property or assets or any other person is
required on the part of Seller in connection with the consummation of the
transactions contemplated by this Agreement, excluding any registration,
declaration or filing the failure to effect which would not have a material
adverse effect on the financial condition of Seller or the operation of its
business after the Closing.
4.4 Title to Purchased Assets. The Seller has and will transfer to Buyer at
Closing good and marketable title to all of the Purchased Assets, that are being
sold to Buyer under this Agreement, free and clear of all liens, claims,
charges, encumbrances, restrictions or security interests, except as listed in
Exhibit 4.4. Seller is not a party to any contract or obligation whereby there
has been granted to anyone an absolute or contingent right to purchase, obtain
or acquire any rights in the Purchased Assets or in any of the assets,
properties or operations of Seller or used in connection with the business of
Seller related to the Purchased Assets.
4.5 Litigation. Except as disclosed in Exhibit 4.5 there is no suit, claim,
arbitration, investigation, action or proceeding entered against, now pending
or, to the Seller's knowledge, threatened against any of the Purchased Assets,
before any court, arbitration, administrative or regulatory body or any
governmental agency. No litigation is pending, or, to Seller's knowledge,
threatened, against Seller, or its assets or properties that seeks to restrain
or enjoin the execution and delivery of this Agreement or any of the documents
referred to herein or the consummation of any of the transactions contemplated
hereby or thereby. The Seller is not subject to any judicial injunction or
mandate or any quasi-judicial or administrative order or restriction directed to
or against it or that would affect the Purchased Assets. There are no judgments
or outstanding orders, injunctions, decrees, stipulations or awards against the
Seller or any of its assets or properties.
4.6 Valuation of the Purchased Assets. The Valuation of the Purchased Assets
provided by the Sellers set forth in Exhibit 4.6 properly reflects the value of
the Purchased Assets.
4.7 No Default. Seller is not in default under any term or condition of any
instrument evidencing, creating or securing any indebtedness of Seller, and
there has been no default in any material obligation to be performed by Seller
under any other contract, lease, agreement, commitment or undertaking to which
it is a party or by which it or its assets or properties are bound, nor has
Seller waived any material right under any such contract, lease, agreement,
commitment or undertaking.
4.8 Absence of Change. The Seller has no knowledge of any present or future
condition or state of facts or circumstances that would materially and adversely
affect the business of the Seller or the Purchased Assets.
4.9 Disclosure. No representation or warranty of the Seller contained in
this Agreement (including the exhibits and schedules hereto) contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
4.10 No Brokerage Commission. Except as set forth in Exhibit 4.10, No
broker or finder has acted for the Seller in connection with this Agreement or
the transactions contemplated hereby, and no person is entitled to any brokerage
or finder's fee or compensation in respect thereof based in any way on
agreements, arrangements or understandings made by or on behalf of the Seller.
4.11 Acquisition of Stock for Investment. The Seller understands that the
issuance of XXXX Stock will not have been registered under the Securities Act of
1933, as amended (the "Act"), or any state securities acts, and, accordingly,
are restricted securities, and the Seller represents and warrants to XXXX that
the Seller's present intention is to receive and hold the XXXX Stock for
investment only and not with a view to the distribution or resale thereof.
Additionally, the Seller understands that any sale by the Seller of any of the
XXXX Stock received under this Agreement will, under current law, require either
(a) the registration of the XXXX Stock under the Act and applicable state
securities acts; (b) compliance with Rule 144 of the Act; or (c) the
availability of an exemption from the registration requirements of the Act and
applicable state securities acts. The Seller understands that XXXX has not
undertaken and does not presently intend to file a registration statement to
register the XXXX Stock to be issued to the Seller. The Seller hereby agrees to
execute, deliver, furnish or otherwise provide to XXXX an opinion of counsel
reasonably acceptable to XXXX, prior to any subsequent transfer of the XXXX
Stock, that such transfer will not violate the registration requirements of the
federal or state securities acts. The Seller further agrees to execute,
deliver, furnish or otherwise provide to XXXX any documents or instruments as
may be reasonably necessary or desirable in order to evidence and record the
XXXX Stock acquired hereby.
To assist in implementing the above provisions, the Seller hereby consents to
the placement of the legend, or a substantially similar legend, set forth below,
on all certificates representing ownership of the XXXX Stock acquired hereby
until the XXXX Stock has been sold, transferred, or otherwise disposed of,
pursuant to the requirements hereof. The legend shall read substantially as
follows:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES ACTS. THESE SECURITIES MUST BE
ACQUIRED FOR INVESTMENT, ARE RESTRICTED AS TO TRANSFERABILITY, AND MAY NOT BE
SOLD, HYPOTHECATED, OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THE
REGISTRATION AND QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE
SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM."
In addition, each Seller consents to XXXX placing a "stop transfer notation" in
its corporate records concerning the transfer of the XXXX Stock acquired by each
Seller.
4.12 Subscription Agreement. The Seller hereby acknowledges, as a condition
to the consummation of the transactions contemplated hereby, that it,
simultaneously with the execution of this Agreement, execute a Subscription
Agreement containing additional representations and warranties relating to the
issuance of the XXXX Stock to the Seller, in the form as set forth in Exhibit
4.12.
4.13 Seller's Access to Information. The Seller hereby confirms and
represents that it: (a) has been afforded the opportunity to ask questions of
and receive answers from representatives of XXXX concerning the business and
financial condition, properties, operations and prospects of XXXX and has asked
such questions as it desires to ask and all such questions have been answered to
the full satisfaction of the Seller; (b) has such knowledge and experience in
financial and business matters so as to be capable of evaluating the relative
merits and risks of the transactions contemplated hereby; (c) has had an
opportunity to engage and is represented by an attorney of its choice; (d) has
had an opportunity to negotiate the terms and conditions of this Agreement; (e)
has been given adequate time to evaluate the merits and risks of the
transactions contemplated hereby; and (f) has been provided with and given an
opportunity to review all current information about XXXX including XXXX'x (A)
Form 10-KSB the fiscal year ended June 30, 1999, and (B) Form 10-QSB for the
fiscal quarter ended September 30, 1999.
4.14 Contracts and Leases. Except as disclosed in Exhibit 4.14, Seller (i)
has no leases or contracts of personal property, written or oral, relating to
the Purchased Assets, whether as lessor or lessee, obligor or obligee; (ii) has
no contractual or other obligations relating to the Purchased Assets, whether
written or oral; and (iii) has not given any power of attorney to any person or
organization for any purpose relating to the Purchased Assets. Exhibit 4.14 sets
forth a complete list, including any amendment, of each contract that is part of
the Purchased Assets to be acquired by the Buyer. Seller has furnished Buyer a
copy of each contract or other document relating to the Purchased Assets to
which they are subject or are a party or a beneficiary, that is to be assumed or
acquired by Buyer. Except as disclosed on Exhibit 4.14 such contracts or other
documents are valid and in full force and effect according to their terms and
constitutes a legal, valid and binding obligation or right of Seller and the
other respective parties thereto and is enforceable in accordance with their
terms, and there are no defaults or breaches under any such contract, lease or
other document and there are no pending or threatened claims under any such
contract, lease or other document. Neither the signing or execution of this
Agreement, nor the consummation of all or any of the transactions contemplated
under this Agreement, will constitute a breach or default under any such
contract, lease or other document.
4.15 Taxes. Seller has timely and accurately filed all federal, state,
foreign and local tax returns and reports required to be filed by them prior to
such tax due dates and has timely paid all taxes shown on such returns as owed
for the periods of such returns, including all withholding or other payroll
related taxes shown on such returns. Seller has made adequate provision for the
payment of all taxes accruable for all periods ending on or before the Closing
Date to any taxing authority and are not delinquent in the payment of any
material tax or governmental charge of any nature. No assessments or notices of
deficiency or other communications have been received by Seller with respect to
any tax return that has not been paid, discharged or fully reserved against and
no amendments or applications for refund have been filed or are planned with
respect to any such return. There are no agreements between Seller and any
taxing authority, including, without limitation, the Internal Revenue Service,
waiving or extending any statute of limitations with respect to any tax return.
4.16 At Closing, the Sellers covenant and agree to provide XXXX with
cash in the amount of not less than $25,000.00 as additional paid in capital for
general corporate purposes.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE BUYER
The Buyer represents and warrants to Sellers as follows:
5.1 Organization and Capitalization of Buyer. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Mexico, with full power and authority and all necessary governmental and
regulatory licenses, permits and authorizations to carry on the businesses in
which it is engaged, to own the properties that it owns currently and to perform
its obligations under this Agreement, is duly qualified or licensed to do
business and is in good standing as a foreign corporation in all states or
jurisdictions that the conduct of such business requires such qualification and
that the failure to be so qualified or licensed would have a material adverse
effect on the business of the Buyer. The authorized capital stock of Buyer
consists: (i) 25,000,000 shares of common stock, $.10 par value of which
8,534,257 pre-reverse split shares are validly issued and outstanding, and (ii)
5,000,000 shares of preferred stock $.10 par value, none of which are issued and
outstanding.
5.2 Authorization of Agreement. Buyer has all requisite corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery by Buyer of this Agreement and the
performance by Buyer of its obligations hereunder (a) have been duly and validly
authorized by all requisite corporate action and (b) will not violate its
charter or bylaws or any order, writ, injunction, decree, statute, rule or
regulations applicable to it or any of its properties or assets, or be in
conflict with, result in a breach of or constitute a default under any note,
bond, indenture, mortgage, lease, license, franchise agreement or other
agreement, instrument or obligation, or result in the creation or imposition of
any lien, charge or encumbrance of any kind or nature whatsoever upon any of the
properties or assets of Buyer. This Agreement and each and every agreement,
document, exhibit and instrument to be executed, delivered and performed by the
Buyer in connection herewith constitute the valid and legally binding
obligations of the Buyer enforceable against it, except as enforceability may be
limited by applicable equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws from time to time in effect
affecting the enforcement of creditors' rights generally.
5.3 No Default. Buyer is not in default under any term or condition of any
instrument evidencing, creating or securing any indebtedness of Buyer, and there
has been no default in any material obligation to be performed by Buyer under
any other contract, lease, agreement, commitment or undertaking to which it is a
party or by which it or its assets or properties are bound, nor has Buyer waived
any material right under any such contract, lease, agreement, commitment or
undertaking.
5.4 Disclosure. No representation or warranty of the Buyer contained in
this Agreement (including the exhibits hereto) contains any untrue statement or
omits to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading.
5.5 No Brokerage Commission. No broker or finder has acted for the Buyer in
connection with this Agreement or the transactions contemplated hereby, and no
person is entitled to any brokerage or finder's fee or compensation in respect
thereof based in any way on agreements, arrangements or understandings made by
or on behalf of the Buyer.
5.6 Litigation. No litigation is pending, or, to Buyer's knowledge,
threatened, against the Buyer, or its assets or properties that seeks to
restrain or enjoin the execution and delivery of this Agreement or any of the
documents referred to herein or the consummation of any of the transactions
contemplated hereby or thereby. The Buyer is not subject to any judicial
injunction or mandate or any quasi-judicial or administrative order or
restriction directed to or against it or that would affect the Purchased Assets.
There are no judgments or outstanding orders, injunctions, decrees, stipulations
or awards against Buyer or any of its assets or properties.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions to the Obligations of Sellers . The obligations of the
Sellers to consummate the transactions contemplated hereby shall be subject to
the satisfaction, on or before the Closing Date, of each and every one of the
following conditions, unless waived, in whole or in part, by the Seller for
purposes of consummating such transaction.
(a) The representations and warranties of Buyer set forth in this Agreement
shall be true and correct in all material respects on the Closing Date;
(b) Buyer shall have performed and complied with all agreements,
obligations, covenants and conditions required by this Agreement to be performed
or complied with on or prior to the Closing Date;
(c) The Seller shall have received a certificate signed by the Buyer to the
effect set forth in Section 6.1(a) and 6.1(b) for the purpose of verifying the
accuracy of such representations and warranties and the performance and
satisfaction of such covenants and conditions;
(d) The Seller shall have received a corporate resolution of the Board of
Directors of the Buyer that authorize the execution, delivery and performance of
this Agreement and the documents referred to herein to which it is or is to be a
party.
(e) No action, suit or proceeding by or before any court or any governmental or
regulatory authority shall have been commenced and no investigation by any
governmental or regulatory authority shall have been commenced seeking to
restrain, prevent or challenge the transactions contemplated hereby or seeking
judgments against Buyer.
6.2 Conditions to the Obligations of Buyer. The obligations of the Buyer to
effect the transactions contemplated hereby shall be subject to the
satisfaction, on or before the Closing Date, of each and every one of the
following conditions, unless waived, in whole or in part, by Buyer for purposes
of consummating such transaction.
(a) The representations and warranties of the Sellers set forth herein shall
be true and correct in all material respects on the Closing Date with the same
force and effect as if they had been made on the Closing Date;
(b) Seller shall have performed and complied with all agreements,
obligations, covenants and conditions required by this Agreement to be performed
or complied with by Seller on or prior to the Closing;
(c) The Buyer shall have received a certificate, dated as of the Closing
Date and signed by each of the Sellers to the effect set forth in Section 6.2(a)
and 6.2(b) for the purpose of verifying the accuracy of such representations and
warranties and the performance and satisfaction of such covenants and
conditions;
(d) Buyer shall have received each of the following, dated as of the Closing
Date or, with respect to certificates of governmental authorities, dated within
30 business days prior to the Closing Date:
(i) A certificate of the Secretary of State of California as to the existence
and good standing of Seller and certificates of the appropriate governmental
authorities of each state in which Seller is qualified or authorized to transact
business as to the good standing and qualification or authorization of Seller;
(ii) Resolutions of the Board of Directors or General Partners of Sellers that
authorize the execution, delivery and performance of this Agreement and the
documents referred to herein to which it is or is to be a party;
(e) Seller shall have delivered to Buyer all bills of sale and other
instruments of assignment, transfer and conveyance necessary to transfer to
Buyer good and marketable title to the Purchased Assets;
(f) No action, suit or proceeding by or before any court or any governmental
or regulatory authority shall have been commenced and no investigation by any
governmental or regulatory authority shall have been commenced seeking to
restrain, prevent or challenge the transactions contemplated hereby or seeking
judgments against Seller.
ARTICLE VII
RELATED TRANSACTIONS
In addition to this Asset Purchase Agreement, the following actions shall take
place:
(a) Prior to the Closing of this Agreement, that certain Stock Purchase
Agreement between Seller and Xxxxxxx Xxxx XX shall be executed, delivered and
performed; and
(b) Immediately after the Closing of this Agreement, that certain Asset
Purchase Agreement between XXXX and Xxxx Resources Corporation, a Texas
corporation, shall be executed, delivered and performed.
ARTICLE VIII
THE CLOSING
The Closing of the transactions contemplated by this Agreement (the "Closing")
shall take place at 11:00 a.m. on ___________ ___, _____ (the "Closing Date"),
at the offices of Xxxxxxx, Xxxxx & Xxxxxxxxx, 0000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000 or at such other time and place as agreed upon among the
parties hereto.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification from the Seller. Each of the Sellers agrees, jointly
and severally, and shall indemnify, defend (with legal counsel reasonably
acceptable to Buyer), and hold Buyer, its officers, directors, shareholders,
employees, agents, affiliates, and assigns harmless at all times after the date
of this Agreement, from and against and in respect of, any liability, claim,
deficiency, loss, damage, penalty or injury, and all reasonable costs and
expenses (including reasonable attorneys' fees and costs of any suit related
thereto) suffered or incurred by Buyer arising from (a) any misrepresentation
by, or breach of any covenant or warranty of Seller contained in this Agreement,
or any exhibit or schedule, certificate, or other instrument furnished or to be
furnished by Seller hereunder, or any claim by a third party (regardless of
whether the claimant is ultimately successful) that if true would be such a
misrepresentation or breach; (b) any nonfulfillment of any agreement on the part
of Seller under this Agreement, or from any material misrepresentation in or
material omission from, any certificate or other instrument furnished or to be
furnished to Buyer hereunder; and (c) any suit, action, proceeding, claim or
investigation, pending or threatened against or affecting Buyer that arises
from, that arose from, or that is based upon or pertaining to Seller' conduct or
operation of the business of the Seller or Seller' ownership, possession or use
of the Purchased Assets and employment of employees, and any other matter or
state of facts relating to the transactions contemplated herein existing prior
to Closing.
9.2 Indemnification from the Buyer. The Buyer agrees to and shall
indemnify, defend (with legal counsel reasonably acceptable to Seller) and hold
Seller, its officers, directors, shareholders, employees, agents, affiliates and
assigns harmless at all times after the date of Closing from and against, and
in respect of any liability, claim, deficiency, loss, damage, or injury, and all
reasonable costs and expenses (including reasonably attorneys' fees and costs of
any suit related thereto) suffered or incurred by Seller, from (a) any
misrepresentation by, or breach of any covenant or warranty of, the Buyer
contained in this Agreement or any exhibit or schedule, certificate, or other
agreement or instrument furnished or to be furnished by Buyer hereunder, or any
claim by a third party (regardless of whether the claimant is ultimately
successful), that if true, would be such a misrepresentation or breach; and (b)
any nonfulfillment of any agreement on the part of Buyer under this Agreement,
or from any misrepresentation in or omission from, any certificate or other
agreement or instrument furnished or to be furnished to Seller hereunder.
9.3 Defense of Claims. If any lawsuit or enforcement action is filed
against any party entitled to the benefit of indemnity hereunder, written notice
thereof shall be given to the indemnifying party as promptly as practicable (and
in any event not less than fifteen (15) days prior to any hearing date or other
date by which action must be taken); provided that the failure of any
indemnified party to give timely notice shall not affect rights to
indemnification hereunder except to the extent that the indemnifying party
demonstrates actual damage caused by such failure. After such notice, if the
indemnifying party shall acknowledge in writing to such indemnified party that
this Agreement applies with respect to such lawsuit or action, then the
indemnifying party shall be entitled, if it so elects, to take control of the
defense and investigation of such lawsuit or action and to employ and engage
attorneys of its own choice to handle and defend the same, at the indemnifying
party's cost, risk and expense; and such indemnified party shall cooperate in
all reasonable respects, at its cost, risk and expense, with the indemnifying
party and such attorneys in the investigation, trial and defense of such lawsuit
or action and any appeal arising therefrom; provided, however, that the
indemnified party may, at its own cost, participate in such investigation, trial
and defense of such lawsuit or action and any appeal arising therefrom. The
indemnifying party shall not, without the prior written consent of the
indemnified party, effect any settlement of any proceeding in respect of which
any indemnified party is a party and indemnity has been sought hereunder unless
such settlement of a claim, investigation, suit, or other proceeding only
involves a remedy for the payment of money by the indemnifying party and
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
9.4 Default of Indemnification Obligation. If an entity or individual
having an indemnification, defense and hold harmless obligation, as above
provided, shall fail to assume such obligation, then the party or entities or
both, as the case may be, to whom such indemnification, defense and hold
harmless obligation is due shall have the right, but not the obligation, to
assume and maintain such defense (including reasonable counsel fees and costs of
any suit related thereto) and to make any settlement or pay any judgment or
verdict as the individual or entities deem necessary or appropriate in such
individual's or entities' absolute sole discretion and to charge the cost of any
such settlement, payment, expense and costs, including reasonable attorneys'
fees, to the entity or individual that had the obligation to provide such
indemnification, defense and hold harmless obligation and same shall constitute
an additional obligation of the entity or of the individual or both, as the case
may be.
ARTICLE X
MISCELLANEOUS
10.1 Notices. All notices and other communications provided for herein
shall be in writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid, or overnight air courier guaranteeing next day delivery:
(a) If to XXXX:
Xxxx Resources, Inc., a Texas corporation
c/o Xxxxxxx Xxxx.
000 Xxxx Xxxxxxx
Xxxx Xxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
With a copy to:
Xx. Xxxxxx X. Xxxxxxx
Xxxxxxx, Xxxxx & Xxxxxxxxx
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(b) If to the Seller:
Xxxx Resources Corporation, A New Mexico corporation.
c/o Xxxxxx/Furla Films
Warner Hollywood Studios--Xxxx Xxxxxxxx Bldg., Suite 101
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
With a copy to:
Xxxx Xxxxxxxxx
00000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
All notices and communications shall be deemed to have been duly given: at the
time that they are delivered by hand, if personally delivered; three days after
being deposited in the mail, postage prepaid, sent certified mail, return
receipt requested, if mailed; and the next day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.
If a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.
10.2 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, which consent will not be unreasonably
withheld. This Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective heirs, personal representatives,
successors and assigns.
10.3 Counterparts and Facsimiles. This Agreement may be executed in
multiple counterparts and in any number of counterparts, each of which shall be
deemed an original but all of which taken together shall constitute and be
deemed to be one and the same instrument and each of which shall be considered
and deemed an original for all purposes. This Agreement shall be effective with
the facsimile signature of any of the parties set forth below and the facsimile
signature shall be deemed as an original signature for all purposes and the
Agreement shall be deemed as an original for all purposes.
10.4 Section Headings. The section headings contained in this Agreement are
for convenient reference only and shall not in any way affect the meaning or
interpretation of this Agreement.
10.5 Entire Agreement. This Agreement, the documents to be executed
hereunder and the exhibits and schedules attached hereto constitute the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties pertaining to the subject matter hereof,
and there are no warranties, representations or other agreements among the
parties in connection with the subject matter hereof except as specifically set
forth herein or in documents delivered pursuant hereto. No supplement,
amendment, alteration, modification, waiver or termination of this Agreement
shall be binding unless executed in writing by the parties hereto. All of the
exhibits and schedules referred to in this Agreement are hereby incorporated
into this Agreement by reference and constitute a part of this Agreement.
10.6 Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
10.7 Survival. The respective representations, warranties, covenants and
agreements set forth in this Agreement shall survive the Closing for the maximum
period allowed by law.
10.8 Public Announcements. The parties hereto agree that prior to making
any public announcement or statement with respect to the transactions
contemplated by this Agreement, the party desiring to make such public
announcement or statement shall consult with the other parties hereto and the
parties shall exercise their best efforts to (i) agree upon the text of a joint
public announcement or statement to be made by all of such parties or (ii)
obtain approval of the other parties hereto to the text of a public announcement
or statement to be made solely by the party desiring to make such public
announcement; provided, however, that if any party hereto is required by law to
make such public announcement or statement, then such announcement or statement
may be made without the approval of the other parties.
10.9 Gender. All personal pronouns used in this Agreement shall include the
other genders, whether used in the masculine, feminine or neuter gender, and the
singular shall include the plural, and vice versa, whenever appropriate.
10.10 Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas, without regard to principles of
conflict of laws.
10.11 Costs and Expenses. All expenses incurred by the parties hereto in
connection with or related to the authorization, preparation and execution of
this Agreement and the Closing of the transactions contemplated hereby, shall be
borne solely and entirely by the party that has incurred the same.
10.12 Further Assurances. Each party covenants that at any time, and from
time to time, after the Closing Date, it will execute such additional
instruments and take such actions as may be reasonably requested by the other
parties to confirm or perfect or otherwise to carry out the intent and purposes
of this Agreement.
10.13 Exhibits Not Attached. Any exhibits or schedules not attached hereto
on the date of execution of this Agreement shall be deemed to be and shall
become a part of this Agreement as if executed on the date hereof upon each of
the parties initialing and dating each such exhibit, upon their respective
acceptance of its terms, conditions and/or form.
[Signatures Appear on the Next Page]
IN WITNESS WHEREOF, the parties hereto have executed or caused this Agreement to
be executed effective as of the day and year first above written.
BUYER: Xxxx Resources Corporation, a New Mexico corporation
By /s/ Xxxxxxx Xxxx XX
-------------------------------------
Print name Xxxxxxx Xxxx XX
Its President
SELLER: Xxxxxx/Furla Films, a California general partnership
By /s/ Xxxxxx Xxxxx
-------------------------------------
Print name Xxxxxx Xxxxx
Its General Partner
SELLER: Xxxxxxx Xxxxxx Films, Inc., a California corporation
By /s/ Xxxxxx Xxxxx
-------------------------------------
Print name Xxxxxx Xxxxx
Its President
SELLER: /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
SELLER: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Xxxxxxx Xxxxxx
Exhibit 1.1 The Purchased Assets [a list of contracts](from Seller)
Exhibit 3.1 Exchange Shares (from Seller)
Exhibit 4.3 Required Consents (from Seller)
Exhibit 4.4 Encumbrances on the Purchased Assets (from Seller)
None
Exhibit 4.5 Litigation (from Seller)
None
Exhibit 4.6 Valuation of the Purchased Assets (from Seller)
Exhibit 4.10 Brokerage Commission (from Seller)
$70,000 to be paid by the sellers to the Whitestone Group
Exhibit 4.12. Subscription Agreement (from Buyer)
Attached
Exhibit 4.14 Contracts and Leases (from Seller)
Exhibit 3.1 Exchange Shares (from Seller)
Name and Address: Number of Shares of XXXX
To Receive
Xxxxxx Xxxxx 3,902,334
Warner Hollywood Studios
Xxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Xxxxxxx Xxxxxx 3,902,333
Warner Hollywood Studios
Xxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Xxxxx Benz 3,902,333
000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Xxxx Xxxxxxxxx 500,000
00 Xxxxxxxxxx
Xxxxxx, XX 00000
