Exhibit 10.1
AGREEMENT
AGREEMENT, dated as of May 15, 2008 (the "Agreement"), by and among Domar
Exotic Furnishings, Inc., a Nevada corporation stock symbol DMXF (the
Purchaser), and R. Xxxxxx Xxxx (the "selling party").
PREAMBLE
The Selling Party is the owner of an aggregate of 100,000 shares of
Preferred Series A convertible stock of the Company ("Sellers Shares"),
convertible into common shares of SportsQuest, Inc., a Delaware corporation,
(the Company). These preferred series A shares when converted represent
approximately 79.% of the issued and outstanding capital stock of the Company,
as of the date hereof.
At the Closing, as set forth in this Agreement:
(a) The Selling Party shall sell and the Purchaser shall acquire from the
Selling Party, the Sellers preferred series A convertible shares for the sum of
six million five hundred thousand shares of common of Purchaser; and
(b) upon closing of this transaction, the Directors of the Purchaser shall
duly appoint R. Xxxxxx Xxxx as President and Chief Executive Officer of the
Purchaser will aU powers attendant to said position and to the Board of
Directors of the Purchaser. The current officers, President and CEO, and
Secretary of the Company shall resign immediately upon the appointment of Xxxx,
as requested by Xxxx. The Purchaser shall contemporaneously with the appointment
duly file a form 8K disclosure of the appointment within 4 days as prescribed by
the rules and regulations of the Securities and Exchange Commission. Xxxxx Xxxxx
will remain as a member of the Board of Directors. Xxxx Xxxxxxx will be
appointed as a member of the Board of Purchaser immediately after closing.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and Covenants herein contained, the adequacy and sufficiency of which are deemed
appropriate by the Parties,,-Purchaser/Company, and the Selling Party hereby
agree as follows:
1. PURCHASE OF THE SELLING PARTIES' SHARES:
(a) At the Closing, the Selling Party shall sell, transfer, convey and
deliver to the Purchaser, the Selling Party right title and interest in and to
the Preferred series A shares referenced herein to the Purchaser set forth
Section 1 (b), below.
(b) The Purchase Price for the Selling Party Shares being purchased by the
Purchaser herein shall be six million five hundred thousand shares of Purchaser,
delivered to Selling parties at the Closing by the Purchaser. At closing said
shares issued and delivered to selling party shall represent 76.47 per cent of
the total outstanding shares of Purchaser.
2. PAYMENT OF LEGAL AND OTHER FEES:
The Purchaser and Selling Party shall be responsible for their own legal
fees in connection with this transaction.
3. THE CLOSING.
(a) General. The closing of the transactions contemplated in this
Agreement, all of which transactions shall all occur contemporaneously (the
"Closing"), shall take place at the offices of the Company, or at such other
place and at such other time as the Parties hereto shall mutually agree, or,
with the mutual agreement of all of the parties, by exchange of documents among
the Parties, following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated herein
(other than conditions with respect to actions the Parties will take at the
Closing itself) on May 20, 2008, or such other date as the Purchaser and the
Selling Parties may mutually detennine (the "Closing Date"). The closing may be
extended automatically for 7 days by one party giving notice of extension in
writing to the other.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING PARTIES.
The Selling Parties individually represent and warrant to the Purchaser
that the statements contained in this Section 4 are correct and complete as of
the date of this Agreement and will be correct and complete as of the Closing
Date (as though made then and as though the Closing Date were substituted for
the date of this Agreement throughout this Section 4).
(a) Each of the Selling Parties has the power and authority to execute,
deliver and perform such Selling Parties obligations under this Agreement and to
sell, assign, transfer and deliver to the Purchaser his, her or its respective
Sellers Shares, as contemplated hereby. No permit, consent, approval or
authorization of, or declaration or registration with any governmental or
regulatory authority or consent of any third party is required in connection
with the execution and delivery by any of the Selling Parties to this Agreement
and the consummation of the transactions contemplated hereby.
(b) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby or compliance with the
terms and conditions hereof by any of the Selling Parties will violate or result
in a breach of any term or provision of any agreement to which that Selling
Party is bound or is a party, or be in conflict with or constitute a default
under, or cause the acceleration of the maturity of that Selling Party's
obligations under any existing agreement or violate any order, writ, injunction,
decree, statute, rule or regulation applicable to that Selling Party's or any of
the Selling Party's properties or assets.
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(c) This Agreement has been duly and validly executed by each Selling
Party, and constitutes the valid and binding obligation of each Selling Party
and the Purchaser, enforceable against the Selling Party and the Purchaser in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other laws affecting creditors' rights generally or by
limitations, on the availability of equitable remedies.
(d) Each of the Sellers Shares are owned beneficially and of record by such
Selling Party in the amounts specified on Schedule A and are validly issued and
outstanding, fully paid for and non-assessable with no personal liability
attaching to the ownership thereof, free and clear of all liens, charges,
security interests, encumbrances, claims of others, options, warrants, purchase
rights, contracts, commitments, equities or other claims or demands of any kind
(collectively, "Liens"), and upon delivery of the Sellers Shares to the
Purchaser, the Purchaser will acquire good, valid and marketable title thereto
free and clear of all Liens. None of the Selling Parties is a party to any
option, warrant, purchase right, or other contract or commitment that could
require that Selling Party to sell, transfer, or otherwise dispose of any
capital stock of the Company, other than pursuant to this Agreement. None of the
Selling Parties is a party to any voting trust, proxy, or other agreement or
understanding with respect to the voting of any capital stock of the Company.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
Purchaser represents and warrants to the Selling Parties, as follows:
(a) The Purchaser is a Corporation. The Purchaser has full power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby.
(b) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby, compliance by the
Purchaser with any of the terms and conditions hereof will violate, or conflict
with, or result in a breach of any provision of, or constitute a default under
or result in the termination of, or accelerate the performance required by, or
result in the creation of any Lien upon any of the properties or assets of the
Purchaser under any of the terms, conditions or provisions of any material note,
bond, indenture, mortgage, deed or trust, license, lease, agreement or other
instrument or obligation to which he is a party or by which he or any of his
properties or assets may be bound or affected or violate any material order,
writ, injunction, decree, statute, rule or regulation nor breach or violate any
Laws, rules or regulations of the United States, and the rules and regulations
promulgated by the SEC, which may be applicable to Purchaser or any of its
properties or assets, except for such violations which, in the aggregate, are
immaterial and do not have any material adverse fmancial effect on Purchaser.
(c) This Agreement has been duly and validly executed by the Purchaser and
constitutes a valid and binding obligation of the Purchaser enforceable in
accordance with its terms, except as the enforceability hereof may be limited by
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bankruptcy, insolvency or similar laws affecting the enforceability of
creditor's rights generally or by limitations, on the availability of equitable
remedies.
(d) The Purchaser is acquiring the Sellers Shares for its own account for
investment and not for the account of any other person and not with a view to or
for distribution, assignment or resale in connection with any distribution
within the meaning of the Securities Act. Purchaser agrees not to sell or
otherwise transfer the Sellers Shares unless they are registered under the
Securities Act and any applicable state securities laws, or an exemption or
exemptions from such registration are available and shall promptly file or cause
to be filed any and all filings, forms, documents and instruments necessary for
the Purchaser to be in compliance with all Federal and state Securities Acts,
laws, rules and regulations. The Purchaser has knowledge and experience in
fmancial and business matters such that it is capable of evaluating the merits
and risks of acquiring the Sellers Shares.
(e) No permit, consent, approval or authorization of, or declaration,
filing or registration with any governmental or regulatory authority or the
consent of any third party is required in connection with the execution and
delivery by the Purchaser of this Agreement and the consummation of the
transactions contemplated hereby.
(f) There is no legal, administrative, investigatory, regulatory or similar
action, suit, claim or proceeding that is pending or, to the Purchaser's
knowledge, threatened against the Purchaser, which would have a material adverse
effect on this transaction.
(g) No representation or warranty by the Purchaser in this Agreement, nor
in any certificate, schedule or exhibit delivered or to be delivered pursuant to
this Agreement contains or will contain any untrue statement of material fact,
or omits or will omit to state a material fact necessary to make the statements
herein or therein, in light of the circumstances under which they were made, not
misleading.
6. DUE DILIGENCE.
The Purchaser has been furnished with documents and instruments and in
addition has conducted its own intensive due diligence investigation relative to
the shares and the representations, warranties and covenants of the Selling
Parties. The Purchaser hereby acknowledges and agrees that it has received all
requisite documents and instruments necessary for the Purchaser to have
completed its due diligence all of which has been furnished to Purchaser to
Purchaser's complete satisfaction within the due diligence period and all Due
Diligence has been complied with.
7. PAYMENTS AT CLOSING; BROKERS; FINDERS.
There are no Brokers or Finders involved in this transaction and none of
the Parties shall be responsible for the payment of any Brokers or finders' fees
other than as specifically set forth herein. Other than the foregoing, none of
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the Selling Parties nor the Purchaser, nor any of their respective directors,
officers or agents on their behalf, have incurred any obligation or liability,
contingent or otherwise, for brokerage or fmders' fees or agents' commissions or
financial advisory services or other similar payment in connection with this
Agreement. The Purchaser has not engaged any Brokers or Finders in connection
with this transaction.
8. PRE-CLOSING COVENANTS.
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing Date:
(a) Each of the Parties has used his or its best efforts to take all action
and to do all things necessary, proper, or advisable in order to consummate and
make effective the transactions contemplated by this Agreement (including
satisfaction, hut not waiver, of the closing conditions set forth in Section 10
below).
(b) Form 8-K Filing; Notices and Consents.
(i) Concurrent with the execution of this Agreement, the Purchaser/Company
shall cause a Form 8-K to be filed with the U.S. Securities and Exchange
Commission with respect to its having entered into this material definitive
agreement and to disclose the material terms set forth in this Agreement. Each
of the Parties will (and the Selling Party will cooperate with the
Purchaser/Company to) give any notices to, make any filings with, and use its
best efforts to obtain any authorizations, consents, and approvals of
governmental authorities necessary in order to consummate the transactions
contemplated hereby.
(ii) The Purchaser/Company acknowledges that it may be required to file
documents, instruments, financial statements and other disclosure documents in
compliance with the Securities Act in order to effect the transaction
contemplated by this Agreement.
(d) The Parties acknowledge that the Purchaser shall have filed all reports
due with the Securities and Exchange Commission due. through the quarterly
period ending February 29, 2008 and the financial statement filed with the 10Q
for that period is accurate as of the date of closing.
(e) Operation of Business. The Purchaser will not take any action, or enter
into any transaction except for ministerial matters necessary to maintain the
Purchaser in good standing and to arrange for the filing of all necessary
reports required under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and any change in name of the Purchaser as required by Selling
party. A change in name of the Company shall not result in a change of the
Company's stock symbol. Without limiting the generality of the foregoing, the
Purchaser will not (i) declare, set aside, or pay any dividend or make any
distribution with respect to its capital stock or redeem, purchase, or otherwise
acquire any of its capital stock except as otherwise expressly specified herein,
(ii) issue, sell, or otherwise dispose of any of its capital stock, or grant any
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options, warrants, preemptive or other rights to purchase or obtain (including
upon conversion, exchange, or exercise) any of its capital stock, (iii) make any
capital expenditures, loans, or incur any other obligations or liabilities, (iv)
enter into any agreements involving expenditures individually, or in the
aggregate, of more than $1,000 (other than agreements for professional services
which will be paid in full at or prior to the Closing), (v) enter into any
agreement or incur any other commitment or (vi) otherwise engage in any
practice, take any action, or enter into any transaction that is inconsistent
with the transactions contemplated hereby.
(f) Notice of Developments. The Selling Parties will give prompt written
notice to the Purchaser of any material adverse development causing a breach of
any of the representations and warranties in Sections 4 and 5, above. No
disclosure by any Party pursuant to this Section 8, however, shall be deemed to
amend or supplement the disclosures contained in the Schedules hereto or to
prevent or cure any misrepresentation, breach of warranty, or breach of
covenant.
(g) Exclusivity. None of the Selling Parties or the Company shall, directly
or indirectly, (i) solicit, initiate, or encourage the submission of any
proposal or offer from any person relating to the acquisition of any of the
Selling Parties Shares or any capital stock or other voting securities, or any
assets (including any acquisition structured as a merger, consolidation, or
share exchange) of the Company or (ii) participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
person to do or seek any of the foregoing. None of the Selling Parties will vote
the shares of the Company's Common Stock held by them in favor of any such
acquisition structured as a merger, consolidation, or share exchange.
9. DOCUMENTS TO BE DELIVERED AT THE CLOSING:
(a) As to the Selling Parties and the Company:
(i) Selling Parties shall deliver to Purchaser share certificates
representing the Sellers Shares, duly endorsed with Medallion Guarantee affixed
evidencing the sale to Purchaser of (1 00,000) shares of Company Preferred
Convertible Stock.
(ii) The Selling Parties shall deliver the Certificate specified in Section
10 (a)(vi) of this Agreement.
(iv) Special Counsel to the Company shall deliver the opinion of counsel on
behalf of the Company, specified in Section 10 (a) (vii) herein.
(v) The Company shall deliver resignations of officers and directors of the
Company as specified in Section 13(a)(viii), herein, except that Xxxxx Xxxxx
will remain as a director.
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(vi) The Company shall deliver a Secretary's Certificate, annexed to which
shall be a true and correct copy of the Certificate of Incorporation and By-Laws
of the Company as at the Closing Date and a resolution of the Board of Directors
authorizing this Agreement and the transactions contemplated thereby.
(vii) The Company shall deliver the corporate Minute Books, the corporate
seal and related corporate documents and instruments contained in the minute
books.
(viii) The Company shall deliver certificates of good standing of the
Company from the Secretaries of State of the States of Nevada and Florida,
respectively.
(b) AS TO THE PURCHASER:
(i) The Purchaser shall deliver payment of the Purchase Price in the amount
of 6,500,000 shares of Common Stock of Purchaser.
10. CONDITIONS TO OBLIGATION TO CLOSE.
(a) Conditions of Obligation of the Purchaser
The obligation of the Purchaser to consummate the transactions to be
performed by the Purchaser in connection with the Closing is subject to
satisfaction of the following conditions:
(i) the representations and warranties set forth in Sections 4 and 5 above
shall be true and correct in all material respects at and as of the Closing
Date;
(ii) each of the Pre-Closing Covenants set forth in Section 8, above shall
have been satisfied;
(iii) the Selling Parties shall have performed and complied with all of
their covenants hereunder in all material respects through the Closing;
(iv) the Company shall have procured all of the third party consents
required in order to effect the Closing;
(v) no action, suit, or proceeding shall be pending or threatened before
any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of the transactions contemplated by this Agreement, (B) cause any
of the transactions contemplated by this Agreement to be rescinded following
consummation, (C) affect adversely the right of the Purchaser to own the Sellers
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Shares and to control the Company, or (D) affect adversely the right of the
Company to own its assets and to operate its businesses (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect);
(vi) the Selling Parties shall have delivered to the Purchaser a
certificate to the effect that (A) each of the conditions specified above in
Section lO(a)(i)-(v) is satisfied in all aspects, and (B) as of the Closing the
Purchaser has no Liabilities and $32,000 in cash in its bank account;
(vii) the selling parties shall have received an opinion of counsel
customary for transactions of this type that covers, among other things, that
the Sellers Shares being delivered pursuant to this Agreement were validly
issued, are fully paid and non-assessable and are being delivered to the
Purchaser in a private transaction not involving any public offering in
compliance with applicable Federal and state securities laws.
(viii) the Purchaser shall have received the resignations, effective as of
the Closing Date, of each current director of the Company, except Xxxxx Xxxxx,
and the Purchaser shall have received the resignations, effective as of the
Closing Date, of each officer of the Purchaser. The Board of Directors of the
Purchaser shall direct that the Designees specified by the Purchaser shall be
appointed as Directors of the Purchaser and any officers of the Purchaser who
may be lawfully appointed to the newly designated Board of Directors of the
Purchaser shall be nominated and elected;
(ix) Except as otherwise set forth in this Agreement, there shall not have
been any occurrence, event, incident, action, failure to act, or transaction
since February 29, 2008 which has had or is reasonably likely to cause a
material adverse effect on the business, assets, properties, financial
condition, results of operations or prospects of the Purchaser;
(x) The Purchaser has fully completed its business, accounting and legal
Due Diligence review of the Company, and the results thereof are completely
satisfactory to the Purchaser;
(xi) the Purchaser shall have received such pay-off letters and releases
relating to Liabilities as they shall have requested and such pay-off letters
shall be in form and substance satisfactory to the Purchaser;
(xii) the Purchaser shall have conducted judgment lien and tax lien
searches with respect to the Company, the results of which indicate no liens on
the assets ofthe Company;
(xiii) the Company shall have delivered its Certificate of Incorporation
and bylaws, both as amended to the Closing Date, certified by the Secretary of
the Company, resolutions adopted by the Board of Directors of the Company
authorizing this Agreement and the transactions contemplated hereby and the
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Company shall have delivered to the Purchaser the Company's original minute book
and corporate seal and all other original corporate documents and agreements;
(xiv) the Company shall deliver to the Purchaser a Certificate of Good
Standing in respect of the Company issued by the Nevada Secretary of State dated
no earlier than ten (10) days prior to the Closing and a certificate of good
standing from the state of Florida for foreign corporation ..
(xv) all actions to be taken by the Selling Parties in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to the Purchaser;
and
(xvi) At the Closing, there shall be no more than 8,500,000 shares of the
Company issued and outstanding other than shares held by the Purchaser on a
pro-forma basis under this Agreement.
The Purchaser may waive any condition specified in this Section lO(a) at or
prior to the Closing in writing executed by the Purchaser.
(b) Conditions to Oblh:ation of the Selling Parties.
The obligations of the Selling Parties to consummate the transactions to be
performed by them in connection with the Closing are subject to satisfaction of
the following conditions:
(i) the representations and warranties set forth in Section 6 above shall
be true and correct in all material respects at and as of the Closing Date;
(ii) each of the Pre-Closing Covenants set forth in Section 8, above shall
have been satisfied;
(iii) the Purchaser shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iv) no action, suit, or proceeding shall be pending or threatened before
any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement or (B)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation (and no such injunction, judgment, order, decree, ruling,
or charge shall be in effect);
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(v) the Purchaser shall have delivered to the Sellers Representative a
certificate to the effect that each of the conditions specified above in Section
10(b)(i)-(iv) is satisfied in all respects;
(vi) all actions to be taken by the Purchaser in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to the Sellers
Representative.
(vii) The Purchaser shall have purchased from the Sellers an aggregate of
100,000 shares of the Company's Preferred Stock for which Purchaser shall have
paid 6,500,000 shares of common stock of purchaser as provided for herein.
(ix) The Purchaser shall have procured and delivered to the Sellers
Representative all of the third party consents required in order to effect the
Closing.
(x) There shall not have been any occurrence, event, incident, action,
failure to act, or transaction that has had or is reasonably likely to cause a
material adverse effect on the business, assets, properties, financial
condition, results of operations or prospects of the Purchaser;
(xi) all actions to be taken by the Purchaser in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to the Company
and the Selling Parties.
The Company and/or the Selling Parties may waive any condition specified in
this Section 1 O(b) at or prior to the Closing in writing executed by the
Company and/or the Selling Parties, as the case may be.
11. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SUN-IVAI OF REPRESENTATIONS AND WARRANTIES All of the representations
and warranties of the Parties shall survive the Closing hereunder and continue
in full force and effect for a period of one (1) year thereafter.
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE PURCHASER.
(i) The Selling Parties shall indemnify the Purchaser from and against any
and all claims, liabilities, actions or matters which shall result in monetary
damages to the Company for any Federal, state or local taxes of the Company with
respect to any tax year or portion thereof ending prior to the Closing Date; and
any monetary damages to the Company for any actions by the Selling Parties from
the end of the Company's most recent fiscal year to the Closing Date, provided
that the Purchaser does not change the fiscal year of the Company at any time,
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or cause any event to occur which would result in a change of accounting
practices 0] procedures or other circumstances so that the liability for any
such actions before or on tht: Closing Date or thereafter can not be readily
determined in which event Selling Parties or tht: Company shall not be liable
for any damages whatsoever.
(ii) The Selling Parties shall indemnify the Purchaser from and against any
claims, liabilities, actions or matters which result in monetary damages to the
Company fOt actions brought by the SEC against the Selling Parties or any of
them for their violation of any laws, rules or regulation promulgated by the SEC
which occurred prior to the Closing Date.
(iii) If any third party shall commence an action relating to a Company
matter that occurred prior to the Closing, the Purchaser shall notify the
Sellers Representative on behalf of each and all of the Selling Parties in
writing, without delay, setting forth the details of such claim and furnishing
the Sellers Representative with a copy of any complaint or other moving papers
relating thereto, to enable the Selling Parties to defend and respond to such
claim or action. The Selling Parties shall indemnify and hold harmless the
Purchaser from and against any such claims, liabilities, actions or matters
which result in monetary damages against the Company, provided that such action
directly relates solely to matters that occurred prior to the Closing and were
not caused by the action or inaction of the Purchaser.
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF EACH AND ALL OF THE SELLING
PARTIES.
(i) The Purchaser shall indemnify the Company and each and all of the
Selling Parties from and against any and all claims, liabilities, actions or
matters which shall result in monetary damages to any or all of Selling Parties
and/or the Company (whether or not accrued or otherwise disclosed) for any
Federal, state or local taxes of the Company with respect to any tax year or
portion thereof ending subsequent to the Closing Date; and any monetary damages
to any or all of the Selling Parties, and/or the Company for any actions by the
Purchaser subsequent to the Closing Date.
(ii) The Purchaser shall indemnify each and all of the Selling Parties and
the Company from and against any claims, liabilities, actions or matters which
result in monetary damages to any or all of them or to the Company for actions
brought by the SEC against the Purchaser or the Company in violation of any
laws, rules or regulation promulgated by the SEC that occur subsequent to the
Closing Date or otherwise relating to Purchaser's actions or inactions or
failures of disclosure.
12. POST-CLOSING COVENANTS.
The Parties agree as follows with respect to the period following the
Closing.
(a) General. In the event at any time after the Closing any further action
is necessary or desirable to carry out the purposes of this Agreement, each of
the Parties will take such further action (including the execution and delivery
of such further instruments and documents) as any of the other Parties may
reasonably request, all at the sole cost and expense of the requesting party.
The Selling Parties acknowledge and agree that from and after the Closing the
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Purchaser will be entitled to possession of all reasonably available documents,
books, records (including tax records), agreements, and financial data of any
sort relating to the Company.
(b) Litigation Support. In the event and for so long as any Party actively
is contesting or defending against any action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand in connection with (i) any
transaction contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date
involving the Company, the other Party will cooperate with him or it and his or
its counsel in the contest or defense, make available their personnel, and
provide such testimony and access to their books and records as shall be
necessary in connection with the contest or defense, all at the sole cost and
expense of the contesting or defending Party (unless the contesting or defending
Party is entitled to indemnification therefore under Section 14 herein).
(c) The Purchaser covenants and agrees that prior to the Closing Date , it
will cause the Purchaser to change its name to another unrelated name in the
States of Nevada and Florida and to make the necessary change on the OTCBB.
(d) Operation of Business. Commencing on the date of this Agreement and up
to and including the Closing Date, the Purchaser and the Selling Parties shall
not cause or permit the Purchaser to take any action, or enter into any
transaction except for ministerial matters necessary to maintain the Company in
good standing and to arrange for the filing of all necessary reports required
under the Securities Act and the Securities Exchange Act and any change in name
of the Purchaser as required by Selling parties. A change in name of the
Purchaser shall not result in a change of the Purchaser's trading symbol.
Without limiting the generality of the foregoing, the Purchaser and/or the
Selling Parties will not cause or permit the Purchaser to (i) declare, set
aside, or pay any dividend or make any distribution with respect to its capital
stock or redeem, purchase, or otherwise acquire any of its capital stock, (ii)
issue, sell, or otherwise dispose of any of its capital stock, or grant any
options, warrants, preemptive or other rights to purchase or obtain (including
upon conversion, exchange, or exercise) any of its capital stock, (iii) make any
capital expenditures, loans, or incur any other obligations or liabilities, (iv)
enter into any agreements involving expenditures individually, or in the
aggregate, of more than $1,000 (v) enter into any agreement or incur any other
commitment (vi) otherwise engage in any practice, take any action, or enter into
any transaction that is inconsistent with the transactions contemplated hereby,
or (vii) assist any person, or agree to assist any person, in taking the actions
described in (i) through (vi) of this Provision.
13. TERMINATION.
Tennination of Agreement. The Parties may terminate this Agreement as
provided below:
(a) The Purchaser, the Company and the Selling Parties may terminate this
Agreement by mutual written agreement of all of the parties at any time prior to
the Closing;
(b) The Purchaser may terminate this Agreement by giving written notice to
the Sellers Representative at any time prior to the Closing if (A) in the event
the Selling Parties have breached any material representation, warranty, or
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covenant contained in this Agreement in any material respect and the Purchaser
has notified the Sellers of the breach, and the breach has continued without
cure for a period of five (5) days after the notice of breach; (B) if the
Closing shall not have occurred by reason of the failure of any condition
precedent under Section 10 (a), hereof (unless the failure results primarily
from the Purchaser themselves breaching any representation, warranty, or
covenant contained in this Agreement).
(c) The Company and/or the Selling Parties may terminate this Agreement by
giving written notice to the Purchaser at any time prior to the Closing (A) in
the event the Purchaser has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, and the Company,
the Selling Parties, as the case may be, have notified the Purchaser of the
breach, and the breach has continued without cure for a period of five (5) days
after the notice of breach; or (B) if the Closing shall not have occurred by
reason of the failure of any condition precedent under Section 10 (b), hereof
(unless the failure results primarily from the Company, the Selling Parties or
themselves breaching any representation, warranty, or covenant contained in this
Agreement).
(d) Effect of Termination Except as aforesaid and subject to the provisions
of Section 10 above, if this Agreement validly terminates pursuant to this
Section 13, all rights and obligations of the Parties hereunder shall terminate
without any Liability of any Party to any other Party, except for any Liability
of a Party that is then in breach.
(e) Termination for Cause. In the event that the transaction would have
closed but for the failure of the other party to close, then the party at fault
shall reimburse the party not at fault party for its documented reasonable legal
fees and related outo of-pocket expenses it has incurred in connection with the
transaction not to exceed a maximum of $15,000.00. The parties agree that any
damages payable on account of any breach of this Agreement shall be expressly
limited to such amount.
14. MISCELLANEOUS.
(a) Facsimile Execution and Delivery. Facsimile execution and delivery of
this Agreement is legal, valid and binding execution and delivery for all
purposes.
(b) Confidentiality; Press Releases and Public Announcements. Except as and
to the extent required by law, no Party will disclose or use and will direct its
representatives not to disclose or use any information with respect to the
transaction that is the subject of this Agreement, without the consent of the
other Parties; provided however, that the Purchaser shall be permitted to
disclose this Agreement and such related information as is necessary, including
information concerning the Company obtained through the Purchaser's Due
Diligence solely with its investment bankers, attorneys and accountants, who are
also involved on a confidential basis. No Party shall issue any press release or
make any public announcement relating to the subject matter of this Agreement
without the prior written approval of the Purchaser and the Sellers; provided,
however, that the Company may make any public disclosure it believes in good
faith is required by applicable law, rule or regulation or any listing or
13
trading agreement concerning its publicly-traded securities (in which case the
Sellers Representative and th~ Company will use their best efforts to advise the
other Parties prior to making the disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not confer any
rights OJ remedies upon any person other than the Parties hereto and their
respective successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may sell, assign or otherwise transfer or have a
third party secure a present or future direct or indirect interest in either
this Agreement or any of his or its rights, interests, or obligations hereunder
without the prior written approval of all of the Purchaser, the Company and the
Selling Parties.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument effective as of the date
first above-written.
(g) Headings. The Section headings contained in this Agreement are inserted
for convemence only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Selling Parties
R. Xxxxxx Xxxx
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
14
If to the Company
SportsQuest, Inc.
0000 X. Xxxxxxxx #000
Xxxxxx, Xxxxxxx 00000
If to the Purchaser:
Domar Exotic Furnishings, Inc. 0000
Xxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been dilly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Parties written or electronic notice in the manner herein above set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Florida without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Florida or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Florida.
(j) Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the Purchaser,
the Company, the Selling Parties (or the Sellers Representative, acting on their
behalf.) No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be valid
unless written, and shall not constitute a waiver of any prior or subsequent
default, misrepresentation, or breach of the same or any other warranty or
covenant hereunder, or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
15
(1) Expenses. Each of the Parties and the Company will bear his or its own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby. The Selling
Parties agree that the Company has not borne or will not bear any of the Selling
Parties' costs and expenses (including any of the Selling Parties legal fees and
expenses) in connection with this Agreement or any of the transactions
contemplated hereby.
(m) Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any Federal, state or local
statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The word
"including" shall mean including without limitation. The Parties intend that
each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(o) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state court sitting in Orange County, Florida or Federal
court sitting in Orlando, Florida in any action or proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of the action
or proceeding may be heard and determined in any such court. Each of the Parties
waives any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety, or other security that might
be required of any other Party with respect thereto. Any Party may make service
on any other Party by sending or delivering a copy of the process to the Party
to be served at the address and in the manner provided for the giving of notices
in Section 14 (h) above.
(This is the end of the Page)
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IN WITNESS WHEREOF, each of the undersigned have duly executed this
Agreement the date first above written.
Domar Exotic Furnishings Inc. Selling Parties
Purchaser
By: /s/ Xxxxxxx Xxxxx Xxxxx By: /s/ R. Xxxxxx Xxxx
-------------------------------- --------------------------------
Name: Xxxxxxx Xxxxx Xxxxx Name: R. Xxxxxx Xxxx
Title: President
17
SCHEDULE A
Number of Company
Selling Parties Shares Owned
--------------- ------------
R. Xxxxxx Xxxx 100,000 Preferred Shares
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
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